Opinion
No. A-10897.
December 15, 1947.
(Syllabus.)
Syllabus Adopted. The facts are identical to the facts in the case of Ex parte E. O. Smith, 85 Okla. Cr. 299, 187 P.2d 1003. The law of that case controls the decision in this case. The syllabus of Ex parte Smith is adopted as the syllabus of this case.
1. Habeas Corpus — When Remedy Available. The remedy of habeas corpus is available wherever it has been found that the court in which the petitioner was convicted had no jurisdiction to try him, or that in its proceedings petitioner's constitutional rights were denied.
2. Constitutional Law — Trial — When Duty of Court to Assign Counsel to Accused Whether Requested or not. In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
3. Trial — Judgment of Conviction Void Where Accused Did not Effectively Waive Right to Assistance of Counsel. A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
4. Habeas Corpus — Presumption of Legality of Judgment and Sentence — Burden of Establishing Right to Release by Clear and Convincing Proof. A strong presumption of legality attaches to any judgment and sentence which is regular upon its face. To overcome such presumption in an action in habeas corpus in which it is alleged that in the proceeding before the trial court at the time the judgment and sentence was pronounced, the court lost jurisdiction to pronounce the sentence by reason of the denial of some of the constitutional rights of the accused, the burden is upon the petitioner to establish his right to release by clear and convincing proof.
5. Same — Writ Denied on Failure of Accused to Sustain Burden of Proof That He Was Denied His Constitutional Rights. Record examined and held: Petitioner failed to sustain burden of showing that trial court lost jurisdiction to pronounce judgment because of the denial of constitutional rights to the accused at time of arraignment, and writ of habeas corpus is denied.
Original proceeding in habeas corpus by Louis Beck to secure his release from the State Penitentiary. Writ denied.
Sigler Jackson, of Ardmore, for petitioner.
Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Charles A. Milor, County Atty., of Marietta, for respondent.
This is an original proceeding in habeas corpus wherein the petitioner, Louis Beck, seeks to secure his release from confinement in the State Penitentiary.
The petitioner was charged by information filed in the district court of Love county with the crime of perjury. He together with one E. O. Smith and H. I. Campbell were charged with having committed the crime of perjury in the trial of the case of one Alex Rawls in the district court of Love county, upon a charge against the said Rawls of attempted rape.
The petition for habeas corpus is in identical language with that considered on this day in the case of Ex parte Smith, 85 Okla. Cr. 299, 187 P.2d 1003. The facts concerning the arrest and plea of guilty by the defendant are substantially the same in each of the cases of E. O. Smith, H. I. Campbell and Louis Beck, and the comment we made in the disposition of the case of Ex parte Smith, supra, applies to the disposition of this case.
The writ of habeas corpus is denied.
BAREFOOT, P. J., and BRETT, J., concur.