Ex Parte Prock , 46 Okla. Crim. 239 ( 1930 )

This is an original proceeding in habeas corpus brought by the petitioner, M.M. Prock. The petitioner alleges that he is unlawfully restrained of his liberty by the sheriff, E.T. Smith, of Harmon county; the cause of his restraint is that on the 14th day of February, 1930, there was filed in the district court of Harmon county, state of Oklahoma, a certain information wherein it was attempted to charge the said defendant with the crime of embezzlement; that the information, together with exhibits attached thereto, wholly fails to charge any crime or offense against the laws of the state of Oklahoma; and that by reason of said fact said imprisonment aforesaid is illegal, and your petitioner is entitled to be discharged therefrom.

Petitioner further alleges that this petition is filed in this court after the same has been presented to the Honorable Frank Mathews, judge of the Twenty-Fifth judicial district, in and for Harmon county, Okla., and has been denied. Petitioner then prays that the writ be granted and he be discharged from custody.

The information in this case is regularly filed in a court of competent jurisdiction. The questions raised by the petitioner are such questions as cannot be raised by habeas corpus.

"Habeas corpus may not be used either before or after conviction to test the sufficiency of the indictment or information." Section 432, C.O.S. 1921; Ex parte Woods,7 Okla. Cr. 645, 125 P. 440; Ex parte Spencer, 7 Okla. Cr. 113,122 P. 557.

"The writ of habeas corpus cannot take the place of a writ of error or of an appeal." Ex parte Adams, 42 Okla. Cr. 27,274 P. 485, and cases therein cited; Ex parte Overby, 43 Okla. Cr. 400,279 P. 523.

The writ is therefore denied.

CHAPPELL, J., concurs. EDWARDS, P.J., absent, not participating.