Ex Parte Allen , 56 Okla. Crim. 154 ( 1934 )

This is an original proceeding in habeas corpus brought by petitioner, Alva Milton Allen, in proper person. The petition alleges that he was convicted in the district court of Creek county, Okla., and sentenced to serve a term of three years in the state penitentiary, and $73.90 costs taxed against him; that he was received at the penitentiary March 12, 1931, and began serving his sentence; that he escaped from the penitentiary July 30, 1931, and was returned to the penitentiary November 21, 1931, and has been in custody of the warden of the penitentiary continuously since that time; at the time he escaped he had served four months and eighteen days on his three-year sentence, and he alleges that from his return November 21, 1931, until July 18, 1934, he has served two years and eight months, a total of two years eleven months and twelve days. That the time required to serve the three-year sentence is one year nine months and one day, to which must be added six months' penalty by reason of his escape, and two months and fourteen days by reason of the cost amounting to $73.90, a total of two years five months and fifteen days; and prays for his release on the ground that he has served full time for his sentence imposed upon him of three years by the district court of Creek county, Okla.

The warden in his response admits that the petitioner was received at the penitentiary March 12, 1931, and served on the conviction and sentence from Creek county, from March 12, 1931, until the 31st of July, 1931, when said petitioner escaped.

The warden further in his response states that while the said petitioner was at large, he was convicted in the district court of Tulsa county, Okla., for the crime of forgery, and was sentenced to be confined and imprisoned in the state penitentiary for a term of four years, and to pay the cost of the prosecution taxed at $46.10. That the petitioner was received in the state penitentiary November 23, 1931, as a prisoner under conviction and sentence from Tulsa county district court, and was held and imprisoned under the sentence imposed by the district court of Tulsa county until April 3, 1934, when he had fully served the sentence imposed by the district court of Tulsa county. That since April 3, 1934, said petitioner has been and is now being held in the state penitentiary serving the remainder of the judgment and sentence imposed against him by the district court of Creek county, Okla., on a conviction for bigamy.

It will be noted that petitioner makes no mention of his conviction while an escaped prisoner from the state penitentiary, in the district court of Tulsa county, Okla., an additional sentence being imposed upon him.

It is further noted that petitioner does not mention the validity of the judgment of the district court of Creek county, Okla., or the jurisdiction of the court to impose the sentence, and as he has not fully served the sentence imposed by the district court of Creek county, we hold that the petitioner is not entitled to the relief prayed for.

The writ is denied.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.