Opinion
No. A-13134.
May 2, 1962.
Original proceeding in which Billy Eugene Sutton seeks release from confinement in the state penitentiary by writ of habeas corpus. Petition dismissed.
Billy Eugene Sutton, petitioner, pro se.
Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for respondent.
This is an original petition on behalf of Billy Eugene Sutton wherein it is alleged that he is being unlawfully detained under and by virtue of a certain judgment and sentence rendered against him in the district court of Pontotoc County on November 25, 1959, wherein he was sentenced by Judge John Boyce McKeel, judge of said court, to serve a term of twenty years in the state penitentiary at McAlester, Oklahoma, for the crime of robbery with a dangerous weapon.
Petitioner alleges that said restraint is unlawful by reason of the fact that the judgment and sentence rendered is excessive. The Attorney General on behalf of the Warden has made response to said petition, denying the allegations thereof, and in which he alleges that excessive punishment is not a matter that can be reached by habeas corpus, but is a matter that can be considered only on appeal.
This Court upon examination of the said petition finds that the petition fails to state a cause of action which would warrant relief by habeas corpus. This conclusion is based upon the fact that it has been repeatedly held that the question of whether a sentence was excessive can not be inquired into on habeas corpus proceedings, but is a matter that can be considered only on appeal. Bolton v. McLeod, Okla. Cr. 294 P.2d 586; Perry v. Waters, 97 Okla. Cr. 17, 256 P.2d 1119; Hill v. Raines, Okla. Cr. 365 P.2d 173.
Furthermore, Title 21 O.S. 1951 § 801[ 21-801] provides a maximum punishment for the crime of robbery with a dangerous weapon may be by death.
This petition being without merit, it is, accordingly, dismissed.
NIX, P.J., and BUSSEY, J., concur.