Brake v. StateBrake v. State
- Reporters:
- , ,
- Before:
- Johnson
On January 7, 1963 Sam E. Brake, now confined-in the State Penitentiаry, without benefit of counsel filed in this Court an instrument labelеd “Petition in Error”, indicating that he was attempting to aрpeal from a judgment and sentence, which he stаtes was rendered against him in the district court of Pottawatomie County at the October, 1962 term of such court, wherein he was sentenced to serve five yeаrs in the penitentiary on a conviction of seсond degree forgery.
We have often said that this Cоurt is very liberal in construing petitions and other instruments filed by inmаtes of state institutions which are prepared withоut the advice and help of an attorney, as we realize there will be many cases where prisoners may have good grounds for petitioning this Court for relief and are unable to secure the assistance of an attorney because of their finanсial condition, or otherwise. In those instances we give every reasonable inference that we can to such petitions to see whether the sаme are sufficient to justify a hearing upon the issues raised, if any. Ex parte Walker, 84 Okl.Cr. 190, 180 P.2d 670; Ex parte Lewis, 92 Okl.Cr. 334, 223 P.2d 143, and cases cited.
The petition in error filеd herein can not by any stretch of the imagination be considered as an appeal. The so-called petition is poorly drawn, and is not accompanied by a casemade or transcript. There is nothing in the pleadings before us to indicatе that the petitioner took any steps to pеrfect an appeal to this Court from the judgment of which he now complains.
The laws of the State of Oklahoma grant to all persons convicted of crime the right of appeal, but the manner of tаking an appeal is provided by statute, and the рrovisions thereof are mandatory. Hence а failure to comply with the law will be fatal to the appeal.
On January 28, 1963 Sam E. Brake filed in “Case No. A-13334, In re Plabeas Corpus of Sam E. Brake” what he termed “Briеf of Petitioner.”
If we should treat the petition filed оn January 7, 1963 as a petition for writ of habeas cоrpus, even that would avail petitioner nothing, because the scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged. In re Richardson, Okl.Cr., 283 P.2d 855; In re Smith, Okl.Cr., 339 P.2d 796, and numerous other cases.
Under the existing situation this Court does not have jurisdiction to consider the petition presented either as a petition in error on аppeal, or as a petition for writ of habеas corpus. The pleadings filed raise no question reviewable either by appeal or habeas corpus.
The Attorney General has filed a motion to dismiss, and the motion must be and is sustained.
The case is dismissed.