Opinion of the Judges of the Criminal Court of Appeals in response to a request from the Governor relative to the conviction of Luke Nichols of the crime of murder.

To His Excellency, the Governor of the State of Oklahoma, Sir:

In response to your official communication of September 28, 1932, addressed to this court, asking for an

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opinion as provided by section 3172, Stat. 1931, in the matter of the conviction of Luke Nichols for the crime of murder in the district court of Alfalfa county on the 1st day of August, 1932, and by judgment of said court sentenced on the 4th day of August, 1932, to death by electrocution on October 28, 1932, we hereby submit the following opinion of the judges:

DAVENPORT, P.J. The record submitted to which is attached your request for opinion discloses defendant was charged with murder in the district court of Alfalfa county, and on August 4, 1932, was sentenced to death. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 3192, Stat. 1931. This time does not expire until February 4, 1933, and defendant has until and including that date to file an appeal in this court from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 3172, Stat. 1931, contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death and where the time to appeal has expired. To render an opinion where an appeal has not been taken or where the time for appeal has not expired would be to express an opinion in ex parte proceedings as to the rights of a defendant, which may afterwards be brought before the court by appeal where all parties interested would be represented. An opinion in advance would deprive a defendant of his constitutional right to be heard in his own behalf. However, should such an appeal not be taken by February 4, 1933, this court will examine the record presented and render an advisory opinion as requested.

EDWARDS and CHAPPELL, JJ., concur.