Ex Parte O'Hara , 89 Okla. Crim. 250 ( 1949 )

This is an original petition for a writ of habeas corpus brought by David Leon O'Hara. In his petition O'Hara alleges that he is being unlawfully imprisoned in the penitentiary at McAlester, Okla., by the warden, C. P. Burford. He alleges that his imprisonment is by virtue of his conviction in the district court of Grady county, Okla., judgment and sentence of him to the penitentiary for 20 years for the crime of robbery with firearms. As grounds for the writ of habeas corpus he makes, in substance, the following allegations, that he was committed purely as a result of a criminal conspiracy, that he was unlawfully deprived of a large sum of money by a spurious search warrant and seizure, which sum of money was never established as having been lost in a robbery case, that he was not accorded a speedy preliminary hearing and arraignment on the information, that the trial of the case wherein he was convicted was lacking in fairness and impartiality, that the court erred in not granting a new trial, that in consequence of the foregoing the trial court lost jurisdiction to pronounce the judgment and sentence.

This court has repeatedly held that inquiry in habeas corpus is limited to the questions, did the trial court have jurisdiction of the subject matter, of the petitioner's person and authority under the law to pronounce the judgment and sentence rendered. Ex parte Noble, 89 Okla. Cr. 231,206 P.2d 226; Ex parte Matthews, 85 Okla. Cr. 23, 186 P.2d 840; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P.2d 550; Ex parte Massengale,67 Okla. Cr. 181, 93 P.2d 41; Ex parte Barnett,67 Okla. Cr. 300, 94 P.2d 18; In re Swaim, 66 Okla. Cr. 30, 38, 89 P.2d 363; Ex parte Keel, 62 Okla. Cr. 277, 71 P.2d 313; Ex parte Newman,67 Okla. Cr. 401, 94 P.2d 556; Ex parte Davis, 68 Okla. Cr. 29,95 P.2d 915; Ex parte West, 62 Okla. Cr. 260, 71 P.2d 129. In the Keel case supra [62 Okla. Cr. 277, 71 P.2d 314], this court said:

"On habeas corpus to determine legality of imprisonment where detention is under the judgment of a district court, the court is limited to a determination of whether the facts stated in the information constitute an offense, and whether the judgment and sentence imposed was warranted by law and was within the jurisdiction of the court."

Clearly the facts stated in the information herein define the crime of robbery with firearms, therefore, the court had jurisdiction of the subject matter. The petitioner was present in person and with counsel during the trial, and the court did not exceed its jurisdiction in pronouncing judgment and sentence. The latter is true because the petitioner was found guilty by the jury which fixed his penalty at 20 years in the penitentiary and the court sentenced him accordingly. A penalty of death might have been imposed. Moreover, as to the contention relative to the delay in the preliminary hearing and arraignment on the charge laid in the information it does not appear that the petitioner raised any objection to the delay in the preliminary proceedings or on his arraignment but proceeded to trial without making the same. In Ex parte Wilkerson,73 Okla. Cr. 32, 117 P.2d 172, it was held that the right to a speedy trial is waived by proceeding to trial without objection. This objection is not timely made.

The other allegations of the petition relate to irregularities of procedure and errors of law on matters over which the trial court had jurisdiction, and are not a subject of inquiry in habeas corpus. In habeas corpus this court will not look beyond the judgment and sentence as to such irregularities. Ex parte West, supra. Such matters can only be raised on appeal. It has repeatedly been held that the writ of habeas corpus cannot be substituted for an appeal. Ex parte Critser, 87 Okla. Cr. 380, 198 P.2d 228, Ex parte Broyles, 84 Okla. Cr. 47, 178 P.2d 652, Ex parte Darr,84 Okla. Cr. 352, 182 P.2d 523, Ex parte Mayfield,84 Okla. Cr. 158, 179 P.2d 934, Ex parte Thomas, 56 Okla. Cr. 258,37 P.2d 829; Ex parte Miles, 56 Okla. Cr. 69, 33 P.2d 636; Ex parte Faber, 56 Okla. Cr. 177, 35 P.2d 741; Ex parte Robinson,56 Okla. Cr. 404, 41 P.2d 127. In the latter case this court said:

"Habeas corpus cannot be used to correct errors or irregularities of procedure, where there is jurisdiction."

Furthermore, where the facts alleged even if established would not warrant discharge by habeas corpus the writ will be denied. Ex parte Noble, supra; Ex parte Whitson,70 Okla. Cr. 79, 104 P.2d 980; Ex parte Linam, 71 Okla. Cr. 155,109 P.2d 838. Such is the situation confronting us in this petition. For all of the foregoing reasons, the writ herein sought is accordingly denied.

JONES, P. J., and BAREFOOT, J., concur.