Ex parte Musgrave

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Ex parte Musgrave
1948 OK CR 131
201 P.2d 272
88 Okl.Cr. 192
Decided: 12/22/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Indictment and Information-Right of Accused to Waive Preliminary Examination. The constitutional provision (Art. 2, § 17, Okla. Const.) that no person shall be prosecuted for a felony by information without having had a preliminary examination is in the nature of a personal privilege for the benefit of the accused which may be waived by him.

2. Arraignment and Pleas-Manner of Challenging Court's Jurisdiction Because of Variance in Allegations in Information and Complaint. The manner of challenging court's jurisdiction of forgery case because of a material variance between allegations of information filed in district court from the allegations of complaint filed before justice of the peace, is by motion to quash or set aside the information before entering a plea on the merits.

3. Same Issue of Material Variance not Presented in Habeas Corpus Proceeding Where Accused Pleads Guilty And Is Sentenced on Charge of Forgery. Where at time of arraignment of accused in district court a plea of guilty is entered and accused is sentenced on charge of forgery set forth in information, the petitioner may not in a subsequent proceeding in habeas corpus present the issue that there was a material variance in the allegation set forth in the information from those contained in the preliminary complaint.

4. Same-Writ not Substitute for an Appeal. Habeas corpus may not be used as a substitute for an appeal.

5. Same-Criminal Court of Appeals Without Authority to Modify Sentence. In habeas corpus proceeding Criminal Court of Appeals does not have authority to modify the sentence imposed against one convicted of crime.

Page 193

Original proceeding in habeas corpus by Charles L. Musgrave seeking release from confinement in the State Penitentiary. Writ denied.

Charles L. Musgrave, of McAlester, pro se.

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

JON,ESY J. This action in habeas corpus was instituted by the petitioner, Charles L. Musgrave, for the purpose of securing his release from confinement in the State Penitentiary.

Two propositions are presented by the petitioner: First, there is a variance in the allegations of the information from those set forth in the preliminary complaint; second, the punishment imposed upon petitioner's plea of guilty was excessive and should be modified.

Certified copies of the information and the preliminary complaint are not attached to the petition, but the petitioner makes the general allegation that in the preliminary complaint he was charged with an attempt to pass a forged instrument, while in the information upon which he was arraigned in the district court, the charge was for the completed offense of forgery.

Without being furnished with copies of the preliminary complaint and the information filed in the district court, we are unable to determine just what allegations were set forth in each of these respective instruments. However, under the statute every person who sells, exchanges or delivers any forged check, or offers such instrument for sale, exchange or delivery, knowing the same to be forged, is guilty of forgery in the second degree. Tit. 21 O.S. 1941 § 1577.

Furthermore, it has been held that the entire preliminary proceedings may be waived in the trial court

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and are waived by failure to file a motion to quash or set aside the information as provided by the statute before entering a plea on the merits. Ex parte Owen, 82 Okla. Cr. 415, 171 P.2d 868.

If the petitioner had wished to raise the question that there was a material variance in the allegations contained in the information from those set forth in the complaint filed before the committing magistrate, he should have raised the question by a motion to quash or set aside the information before entering a plea on the merits. Landon v. State, 82 Okla. Cr. 336, 166 P.2d 781; Sparks v. State, 71 Okla. Cr. 430, 112 P.2d 434; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

As to the second proposition contended for by petitioner that the punishment is excessive, it should be borne in mind that this is not a hearing on appeal, but is an original action in habeas corpus and in such proceedings only jurisdictional questions will be considered.