(Syllabus.)

1. Habeas Corpus — Court Held not to Have Lost Jurisdiction of Petitioner by Rendering Void Order Suspending His Sentence. Where petitioner for writ of habeas corpus had been tried for forgery, second degree, found guilty and sentenced to five years in the State Penitentiary, at McAlester, and the court on the same day suspended his sentence, the order reciting that the defendant had not theretofore been convicted of any crime in any state or territory of the United States, and otherwise conforming to Tit. 22 O.S. 1941 § 991 [22-991], reciting terms of suspension, and defendant signs an agreement endorsed on said order signifying his understanding of the terms of the order, and agreeing to comply with the same, and thereafter the court revokes such suspension of sentence for violation of terms of suspension, and defendant is delivered to the penitentiary to serve his sentence, and as a basis for a writ of habeas corpus now tenders evidence of his former conviction of a series of crimes making him ineligible in fact for the suspended sentence granted him, the court did not as contended by petitioner lose jurisdiction of the case, and had jurisdiction under the facts recited to revoke said suspended sentence.

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2. Judgment and Sentence — Judgment Rendered not Affected by Suspension of Sentence. The suspension of a sentence does not affect the judgment rendered, and the judgment is not impaired or limited, but rather the time for its execution is merely deferred as a matter of grace, and the suspension is subject to withdrawal by the court for a violation of some of the conditions named in the statute dealing with suspension of sentence.

Petition of Freddie Allen for writ of habeas corpus. Writ denied.

Freddie Allen, pro se.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore. Asst. Atty. Gen., for respondent.

POWELL, J.

The petitioner has filed herein his original petition alleging that he is unlawfully confined by Clarence P. Burford, warden of the State Penitentiary, at McAlester, Okla.

The transcript disclosed that the defendant was on August 24, 1948, tried in the district court of Custer county on the charge of forgery in the second degree, being represented by counsel whose fees were paid by the state, and that he was found guilty, and sentenced to serve a term of five years in the State Penitentiary at McAlester. But the sentence was on the same day suspended by the trial judge, the order providing, however, that the defendant be sent to Supply, Okla., and that he should comply with the rules of the state institution (for treatment of narcotics) there and co-operate with the officials and not run away or leave without release. The defendant signed such agreement.

On the 8th day of November, 1948, the county attorney of Custer county filed a motion in the district court of that county praying the revocation of the suspended sentence on the ground that on the 5th day of November,

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1948, Freddie Allen was intoxicated in a public place, being on the streets of Clinton, Okla., and was arrested by the sheriff of Custer county for said offense, and that he left the institution at Supply without the knowledge or consent of the officers and in violation of the terms of his suspended sentence. On hearing on December 20, 1948, the district court of Custer county revoked the suspended sentence and the defendant was delivered to the warden at McAlester, to serve his sentence.

Petitioner contends that the trial court had no authority under the law to give him a suspended sentence, because he had prior thereto served six prison sentences for forgery, second degree; served two sentences for burglary, and had been arrested eight times on dope and drunk charges. This latter allegation is borne out by the F.B.I. records attached to the petition filed herein, but there is nothing in the record to disclose that the district judge before whom petitioner was tried had knowledge of such facts. Should he have such knowledge, by reason of Tit. 22 O.S. 1941 § 991 [22-991], it would have been his duty to have had the defendant transported without delay, in absence of appeal, to the penitentiary.

We must assume that the court did not have this information, the order suspending the sentence setting out as a predicate for the order that the defendant, petitioner herein, had not prior thereto been convicted of any crime in any state or territory of the United States. Also, the fact that petitioner signed the agreement annexed to the order agreeing to all the terms of the order, evidences that he had full knowledge of the contents of the order.

The defendant contends that the court lost jurisdiction of his case when he illegally suspended his sentence and failed to send him immediately to the State Penitentiary,

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and for such reason could not act further in the matter, and that the subsequent order revoking his suspended sentence was and is void, citing State v. Felts, 63 Okla. Cr. 201, 74 P.2d 125, and Wallace v. State, 54 Okla. Cr. 90, 14 P.2d 956. Those cases are not in point as to the questions raised.

As a matter of fact, however, it is not important whether the authorities knew of the former convictions or not, so far as the petition herein is concerned, as the suspension of a sentence does not affect the judgment rendered. It is not impaired or limited, but rather, the time for its execution is merely deferred as a matter of grace, and the suspension is subject to withdrawal by the court for a violation of some of the conditions named in the statute dealing with suspension of sentence. Stone v. State, 86 Okla. Cr. 1, 188 P.2d 875; Hall v. State, 78 Okla. Cr. 83, 149 P.2d 268.

The error here was in favor of the defendant, and of this he cannot complain. This principle is involved in Ex parte Maish, 58 Okla. Cr. 271, 52 P.2d 85. If the county attorney had known of petitioner's past criminal record, he could have filed a charge under the habitual criminal act. Tit. 21 O.S. 1941 §§ 51 [21-51] and 52. This he did not do and of this the petitioner cannot complain, being in his favor. Wilson v. State, 89 Okla. Cr. 421, 209 P.2d 512.

It follows that petitioner is lawfully imprisoned under said judgment and sentence. Wherefore, the writ of habeas corpus will be denied. It is so ordered.

JONES, P.J., and BRETT, J., concur.

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