Ex Parte Smith , 17 Okla. Crim. 578 ( 1920 )

In this proceeding petitioner by his counsel, Jeff D. McLendon, presented to this court on April 1, 1920, a petition alleging that he is unlawfully imprisoned in the state penitentiary at McAlester and restrained of his liberty by Fred Switzer, warden of said institution; that said imprisonment is under and by virtue of a commitment issued on the 20th day of March, 1920, by the court clerk of McCurtain county, which commitment is predicated upon conviction of petitioner and judgment rendered in the district court of McCurtain county on the 22d day of September, 1917, sentencing him to serve a term of two years' imprisonment in the penitentiary on a charge of embezzlement; that petitioner prosecuted an appeal from said judgment to the Criminal Court of Appeals, and on the 19th day of August, 1919, said conviction was affirmed (see 16 Okla. Cr. 701,183 P. 515); that in the opinion the court says that where the record fails to show that the judgment was superseded by the giving of the required supersedeas bond in the court below, the presumption obtains that the judgment was immediately carried into effect by incarceration in the penitentiary; that there was never any mandate in said cause spread upon the minutes or journal of the district court of McCurtain county until the 27th day of March, 1920.

The Attorney General filed a general demurrer on the ground that said petition does not state facts sufficient to entitle petitioner to the relief prayed for.

It has been uniformly held by this court that, where a convicted defendant is at liberty and has not served his sentence, and the same is not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment, and that expiration of time without imprisonment is in no sense an execution of the sentence. See Exparte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L.R.A. (N.S.) 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196,113 P. 993; Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821; Exparte Riggert, 33 Okla. 303, 125 P. 485.

It appearing that the application is insufficient to show that petitioner is entitled to the writ or rule to show cause, the demurrer is sustained, and the writ refused.

ARMSTRONG and MATSON, JJ., concurring.