Opinion
No. A-5679.
Opinion Filed July 7, 1925.
Habeas corpus application by Delton Humphries against George H. Waters, Warden of the State Penitentiary. Petitioner ordered released.
Joe Bailey Allen, for petitioner.
George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State and respondent Waters.
Upon presentation and hearing of this petition for writ of habeas corpus of Delton Humphries, the proof shows that the petitioner is now and for some months past has been incarcerated in the state penitentiary at Granite by authority of a conviction for burglary, judgment upon which was rendered in the district court of Murray county; that at the time of the rendition of judgment the petitioner was under the age of 16 years, and that no investigation was had in the juvenile court as is in such cases by law provided.
In the case of Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962, this court held:
"If the record in a felony case in the district (or superior) court fails to affirmatively disclose that an issue of fact was tried and determined, finding that the offender was over the age of 16 years, that issue remains open for this court to determine in a habeas corpus proceeding.
"A child under the age of 16 years cannot be guilty of the commission of a crime except in cases where it is shown by the findings of a juvenile court that the child knew the wrongfulness of the act charged."
The reasons and authorities for such conclusions are set out in the Pyzer Case.
The prayer of the petitioner is therefore granted, and the petitioner is ordered released from the custody of the warden, or superintendent of the state reformatory at Granite, upon delivery to him of an attested copy of this opinion.