Opinion
No. 2108
Opinion Filed January 9, 1912. Rehearing Denied October 1, 1912.
HABEAS CORPUS — Appellate Jurisdiction. An appeal does not lie to this court from an order in habeas corpus remanding a party held for extradition for a criminal offense.
(Syllabus by the Court.)
Williams, J., dissenting.
Error from District Court, Cleveland County; R. McMillan, Judge.
Application of Robert Logan, by B. F. Williams, Jr., for habeas corpus to I. B. Sale and others. Application denied, and petitioner brings error. Proceeding in error dismissed.
J. B. Dudley, B. F. Williams, Jr., and S. A. Horton, for plaintiff in error.
Jackson Eagleton and G. G. Graham, for defendants in error.
This case presents error from the district court of Cleveland county. Plaintiff in error, Robert Logan, being held in the county jail of Cleveland county for the purpose of extradition for an offense alleged to have been committed in the state of Tennessee, by and through Ben F. Williams, Jr., Esq., brought habeas corpus in the district court of said county to secure his release. The court denied the application, and remanded him to the custody of the sheriff and jailer of the said county, where it appears he has since been held. Time was taken to prepare, make, and serve a case-made for this court, and the same has been duly lodged herein.
Counsel for defendants in error have filed a motion to dismiss the same, for the reason that the order made by the court is not of that final and conclusive character necessary to support a proceeding in error, and that no right of appeal to this court exists. The question presented and argued has recently been passed upon by the Criminal Court of Appeals in the case of Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461, and by this court in Wisener, Sheriff, v. Burrell, 28 Okla. 546, 118 P. 999, 34 L. R. A. (N. S.) 755, and in each of these cases it was held that an appeal does not lie from such an order. The conclusion was reached after a full consideration of the question, and in our judgment is supported by the weight of authority and the better reasoning, and we find in the arguments of counsel in this cause no reason to change the same.
The motion is accordingly sustained, and the proceeding in error dismissed.
TURNER, C. J., and HAYES and KANE, JJ., concur; WILLIAMS, J., dissenting.