Ex Parte Colbert , 94 Okla. Crim. 300 ( 1951 )

94 Okla. Crim. 300 (1951) 235 P.2d 541

Ex parte COLBERT et al.

No. A-11617.

Criminal Court of Appeals of Oklahoma.

September 5, 1951.

Edward Andrew Colbert and Arthur LeRoy Hall, pro se.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

POWELL, J.

Petitioners seek a writ of habeas corpus, setting out that they have each been illegally confined in the State Penitentiary at McAlester, since July 1, and July 2, 1951, respectively. The case has been advanced on the docket for opinion.

It is set out that the petitioners, Edward Andrew Colbert and Arthur LeRoy Hall, were each sentenced by the district court of Pontotoc county, in case No. 3930, on the 27th day of September, 1950, to two years in the pentientiary for the crime of second degree burglary, but that it was stipulated by the court, Hon. Hoyt Driskill, that petitioners were each to be given credit for 170 days jail time "by reason of confinement in the county jail prior to being sentenced in said case." It will be noted that the sentence imposed was the minimum under the law. Title 21 Ohio St. 1941 § 1436.

The Attorney General has filed a response on behalf of the warden of the penitentiary, and it is admitted that the judgment and sentence as to each of said appellants contains the recital alleged, but it is stated, "that respondent has refused to grant said credit for the reason that neither the court pronouncing said sentence nor any other court has authority to give or order such credit for jail time; that such credit constitutes a matter of clemency and can only be given upon the order and direction of the Governor of this State."

The case of Ex parte Tarta, 94 Okla. Crim. 103, 231 P.2d 709, is cited. That case is exactly in point and decisive of the issues here interposed, and may be referred to for a full discussion of the rules involved.

The writ is accordingly denied.

BRETT, P.J., and JONES, J., concur.