In Re Earl Bibbins

BAREFOOT, J. Petitioner lias filed in this court bis petition for babeas corpus, seeking bis release from tbe State Penitentiary. Tbe Attorney General filed a response on bebalf of tbe Hon. R. B. Conner, warden of tbe Penitentiary, on December 26, 1945, and a supplemental response on January 4, 1946. Tbe case was set for oral argument and submitted on January 23, 1946. Tbe exhibits attached to tbe petition, tbe response, and tbe record, reveal that tbe petitioner was charged by information filed in tbe district court of Osage county on December 27, 1944, with tbe crime of burglary in tbe second degree, and was also charged as a second offender, with having been previously convicted in Osage county, Okla., on November 14, 1941, of tbe crime of petty larceny, and having served a term of ten days in the county jail; and with having been previously convicted in Osage county, Okla., on June 21, 1937, of tbe crime of burglary in tbe second degree, and having served a term of two years in tbe State Reformatory at Granite, Okla. Petitioner was represented by able counsel and entered a plea of not guilty. He was tried before a jury, found guilty, and also that be was a second offender, *236 and judgment and sentence was assessed against him by the court at ten years in the- State Penitentiary. Motion for new trial was filed and overruled, and no exception was taken, and no appeal was filed by petitioner. Under- the above statement, this case comes clearly within the rule so often announced by this court that an appeal can not be considered upon a petition for habeas corpus. It'-fiS- only when the judgment and sentence is Void that relief will be given by habeas corpus. Petitioner has presented the question in this case that he was sentenced for a term of ten years, and that the statute, 21 O. S. 1941 § 1436, fixes the maximum punishment for conviction of second-degree burglary at seven years in the penitentiary. In making this contention, defendant overlooks the fact that the “habitual criminal” statute, 21 O.S. 1941 § 51, provides that one having been previously convicted of a felony, upon subsequent conviction of the offense of burglary in the second degree may be sentenced to a term of ten years in the penitentiary. This is the minimum punishment prescribed by the statute. We have recently passed upon this question in the case of Claude Taylor v. State, 82 Okla. Cr. 49, 166 P. 2d 108. While it is not necessary to pass upon the question for the reasons above stated, petitioner alleges that he was convicted by a jury of ten men. The record reveals that he waived the right to have twelve men sit as jurors in this case, and agreed to be tried by ten jurors. This he had a right to do. Ex parte Hollingsworth, 46 Okla. Cr. 353, 287 P. 840; Trott v. State, 62 Okla. Cr. 52, 70 P. 2d 118. *237 For the reasons above stated, the petition for writ of habeas corpus is denied. JONES, P. J., concurs. DOYLE, J., not participating.