Opinion
No. A-4880.
Opinion Filed October 13, 1923.
Habeas corpus by Charlie Safarik, alias Charlie Safarki, for discharge from the penitentiary. Writ allowed, and petitioner discharged.
Lewis Paullin and E.C. Patton, for petitioner.
The Attorney General and N.W. Gore, Asst. Atty. Gen., for respondent.
This is a petition for writ of habeas corpus for the discharge of Charlie Safarik, alias Charlie Safarki, from the penitentiary at McAlester, Okla., wherein it is alleged that he is unlawfully restrained of his liberty by J.H. Townsend, warden; that the cause of said restraint is a judgment issued upon a conviction in the district court of Grant county, Okla., on a charge of having in his possession mash, wort, and wash, rendered on the 1st day of September, 1923, to serve a term of one year and to pay a fine of $100, and alleging that said restraint is illegal and unauthorized, for the reason that the law under which he was convicted and is now serving a sentence, to wit, chapter 1, Session Laws of Oklahoma 1923, making it a felony to have in one's possession a still, still worm, or mash, wort, or wash, etc., was held unconstitutional and void, as determined by this court in Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708. The Assistant Attorney General appeared in open court and conceded that the writ should issue and the petitioner be discharged. In the case of Ex parte Smith, supra, the statute upon which this prosecution was based was held unconstitutional and void. It follows that the petitioner is illegally restrained of his liberty by the respondent, and that he is entitled to be discharged from the prison of which he complains, and that he is therefore by the judgment of this court discharged therefrom.
The clerk of this court will forward forthwith to the warden of the penitentiary at McAlester a duly certified copy of this opinion, and upon receipt of the same said warden is authorized to discharge said petitioner, Charlie Safarik, alias Charlie Safarki.
BESSEY and DOYLE, JJ., concur.