Ex parte Collins

Ex parte Collins
1947 OK CR 3
176 P.2d 507
83 Okl.Cr. 296
Decided: 01/15/1947
Oklahoma Court of Criminal Appeals

(Syllabus.)

1 Rape-Maximum Punishment for Crime of Assault With Intent to Commit Rape. The maximum punishment which may be

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assessed upon conviction for the crime of assault with intent to commit rape is five years imprisonment in the State Penitentiary. 21 O. S. 1941 § 681.

2. Same-Punishment for Attempted Rape. Attempted rape, where no special provision is made by law, is punishable as provided by 21 O. S. 1941 § 42, which authorizes punishment in case of a conviction for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.

3. Same-Sentence for Attempted Rape of 37 years' Imprisonment Within Statutory Limits. The sentence of one convicted of attempted rape In the first degree to a term of 37 years imprisonment in the State Penitentiary is within the statutory limits of the punishment prescribed for such offense.

4. Habeas Corpus-Writ not Issued Where Questions Could Have Been Presented on Appeal. Criminal Court of Appeals will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to a new trial or his release from custody, unless the question raised is such as to show that the judgment is wholly void.

Original habeas corpus proceeding by Elmer Collins to secure release from confinement in the State Penitentiary. Writ denied.

Elmer Collins, pro se.

Mac Q. Williamson, Atty, Gen., for respondent.

JONES, J. This is an original proceeding in habeas corpus wherein the petitioner, Elmer Collins, seeks to secure his release from confinement in the State Penitentiary at McAlester.

The Attorney General has filed a demurrer to the petition calling our attention to the fact that in the cases of Ex parte Collins, 76 Okla. Cr. 163, 135 P.2d 61, Collins v State, 59 Okla. Cr. 18, 55 P.2d 790, and Ex parte Collins, 79 Okla. Cr. 193, 153 P.2d 243, the exact contention now

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presented by petitioner was in each of these cases considered and decided adversely to petitioner.

Attached to the verified petition is a photostatic copy of the judgment and sentence pronounced against the defendant wherein the judgment erroneously recites that the jury found defendant guilty of "assault with intent to rape" and fixed his punishment at imprisonment in the State Penitentiary for 37 years. Of course, if the defendant has been found guilty of assault with intent to commit rape, the maximum punishment that could have been assessed would have been five years imprisonment in the State Penitentiary. 21 O. S. 1941 § 681.

However, as shown by the record of the appealed case, Collins v. State, supra, the defendant was charged by information filed in the district court of Muskogee county of attempted rape in the first degree by the use of force and violence. The trial court instructed the jury that if they should find the defendant guilty of attempted rape as charged in the information, they should fix his punishment at any term in the State Penitentiary not exceeding one-half of the longest term of imprisonment fixed for the crime of rape in the first degree. The jury was further advised that rape in the first degree is punishable by death or imprisonment in the State Penitentiary for any term not less than 15 years.

In Collins v. State, supra, the question of the amount of punishment that could be assessed the defendant under the verdict of the jury was discussed at length. The facts of the case showed an extremely aggravated assault by the defendant, a negro, upon a young white woman school teacher.

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