Opinion
No. A-2736.
Opinion Filed April 18, 1917.
HABEAS CORPUS — Discharge — Sufficiency of Petition. Where the facts averred in a petition for a writ of habeas corpus, if established, will not warrant the discharge of the prisoner, the writ will be denied.
Application by James H. Crouch for writ of habeas corpus. Writ denied.
W.F. Harn, for petitioner.
R. McMillan, Asst. Atty. Gen., for respondent.
This was an application to this court for a writ of habeas corpus. It appears from the petition that the petitioner was tried in the district court of Oklahoma county, Edward Dewes Oldfield, presiding judge, and was convicted of manslaughter in the first degree, and was sentenced to imprisonment in the penitentiary for the term of ten years. Under said sentence he was committed to the custody of M.C. Binion, sheriff of said county, on a commitment directing said sheriff to transport petitioner to the penitentiary at McAlester, and the petitioner claims that his imprisonment is illegal, and among other things states that such illegality consists in this:
"That the alleged verdict of the jury and purported judgment and sentence imposed by the said Edward Dewes Oldfield, pretending to act as a judge of the district court of the Thirteenth judicial district of the State of Oklahoma, within and for Oklahoma county, said state, is void by the reason that Edward Dewes Oldfield at the time said alleged verdict was returned by the jury, and at the time said judgment and sentence were imposed upon this petitioner was not and at this time is not a de jure or de facto judge of the Thirteenth judicial district of Oklahoma, but at the times last aforesaid said Edward Dewes Oldfield was, and now is, an usurper of the office of judge of the said district court."
To the petition the state interposed a demurrer on the ground that the facts stated in the petition, if established, will not warrant the discharge of the prisoner. The demurrer was sustained, and the writ was denied.