BRETT, Presiding Judge.
This is an original petition for writ of habeas corpus brought by the petitioner, Jim Igo, who complains that he is being unlawfully detained in the state penitentiary by the warden thereof. He alleges the cause of said restraint is a certain judgment and sentence entered against him in the District Court of Coal County, Oklahoma, for murder, a second and subsequent offense. It is alleged that he murdered his wife on April 21, 1952, after other prior felony convictions. Conviction was had on the charge as alleged and judgment and sentence thereon imposed was affirmed herein on January 20, 1954, and rehearing denied on March 24, 1954. Igo v. State, Okl.Cr., 267 P.2d 1082.
In the proceeding herein, the petitioner attacks the jurisdiction of the Justice of the Peace Court and the jurisdiction of the District Court. The attack on the jurisdiction of the Justice of the Peace Court is to the effect that the petitioner [971]*971sought a continuance in said court sitting as a committing magistrate, which was denied. He further complains he moved for a change of venue, which was likewise denied. He further complains he thereafter sought time to present a petition in the District Court for mandamus to obtain a change of venue, which was denied. He contends that these matters constituted error defeating the jurisdiction of the District Court to try him. He queries, what more could he do? The answer is what numerous cases have held he should have done. He should have filed a motion to quash the information, which he did not do. The attack now sought to be made by habeas corpus is out of time and to no avail. 22 O.S.1951 § 492 reads, in part:
“ * * ⅜ he may, in answer to the arraignment, either move the court to set aside the indictment, or information or may demur or plead thereto.”
22 O.S.1951 § 493 reads:
“The indictment or information must be set aside by the court, in which the defendant is arraigned, and upon his motion in any of the following cases:
“1. When it is not found, indorsed, presented or filed, as described by the statutes * * * and that fact is known to the defendant at or before the time the jury is sworn to try the cause: Provided, that the defendant shall be conclusively presumed to know matters of record.”
In this connection, it has been repeatedly held that even where no preliminary is held at all in a felony case, that such matter must be raised by a plea in abatement or motion to quash the information. Williams v. State, 6 Okl.Cr. 373, 118 P. 1006; Buttry v. State, 18 Okl.Cr. 330, 194 P. 286; Perry v. State, 31 Okl.Cr. 250, 238 P. 229; Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258. In Perry v. State, supra, it was contended the trial court was without jurisdiction because the record failed to show any preliminary hearing was held. This contention was denied on appeal for the reason hereinbefore given. It has many times been held that objections to an information based on the absence of any essential preliminary proceeding should be made by motion to quash or by plea in abatement before pleading to the merits. Ralston v. State, 16 Okl.Cr. 634, 185 P. 831. In fact, the foregoing rule applies to any irregularities in the preliminary proceedings. Ingram v. State, 87 Okl.Cr. 223, 196 P.2d 534; Herren v. State, supra. Moreover, it has been held that when a defendant is arraigned on an information and pleads to the merits, he waives the right to a preliminary hearing, and if one was had, the right to obj ect to any irregularities therein. Sheller v. State, 58 Okl.Cr. 204, 52 P.2d 105; Ex parte Story, 88 Okl.Cr. 358, 203 P.2d 474, and numerous other cases to the same effect.
The record of the original appeal herein, Igo v. State, supra, which we have reexamined, does not reveal either a motion to quash the information or a plea in abatement, but to the contrary, discloses that the. defendant made no attack on the information on arraignment, but pled not guilty and stood trial thereon. It is thus apparent that the petitioner herein waived the right to object to any irregularities in the preliminary hearing by failure to file timely motion to quash the information.
The petitioner’s second contention is that he was illegally charged, tried, and sentenced for an alleged crime which is unknown to the Oklahoma Penal Code; murder, a second and subsequent offense. This contention was discussed and passed on in Igo v. State, supra [267 P.2d 1085], In syllabi 5 and 6, we said:
“Habitual criminal statute, Tit. 21 O.S.1951 § 52, authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the court must charge the jury on some included offense.
“Where in a prosecution for murder the State’s counsel from knowledge of the nature of testimony of State’s witnesses, are convinced that the trial [972]*972court would be justified, if not compelled by such testimony alone, to give ah instruction on the included offense of manslaughter in the first degree, it is, under such circumstances, proper to charge the crime as a second and subsequent offense under the provisions of Tit. 21 O.S.1951 §§ 51, 54, commonly known as the habitual criminal act.”
While there is no crime specifically defined as “murder, a second and subsequent offense,” it is apparent from the foregoing that under permissible conditions, the accused may be so charged.
Moreover, the statutes define the crime of murder, 21 O.S.1951 §§ 691 and 701, as the killing of a human being by another when perpetrated without authority of law with the premeditated design to effect the death of the person killed or of any other human being, etc. The statute also defines a second and subsequent offense, 21 O.S.1951 § 51, which has been repeatedly held does not define a crime but describes circumstances wherein one found guilty of a specific crime may be subjected to a greater punishment as a second and subsequent offender. Salisbury v. State, 80 Okl.Cr. 13, 156 P.2d 149; Spann v. State, 69 Okl.Cr. 369, 103 P.2d 389, and many other cases. The constitutionality of Sec. 51 has been passed upon and its clarity upheld. We do not find its terms vague and indefinite as contended for by the petitioner. Ex parte Hibbs, 86 Okl.Cr. 113, 190 P. 2d 156, certiorari denied Hibbs v. State, 335 U.S. 835, 69 S.Ct. 25, 93 L.Ed. 387; Ex parte Sanders, 95 Okl.Cr. 33, 238 P.2d 840, certiorari denied Sanders v. Waters, 342 U.S. 929, 72 S.Ct. 370, 96 L.Ed. 692. It is thus apparent there was no attempt on the part of the pleader herein to create a new crime not recognized by statute, but only an attempt to so plead as to meet the contingency of the defense which might establish facts that would require the trial court to charge the jury on the included offense of manslaughter in the first degree. Igo v. State, supra; Broyles v. State, 83 Okl. Cr. 83, 173 P.2d 235. In this regard, the prosecutor herein was not in error. The trial court believed the facts warranted the giving of an instruction on manslaughter in the first degree, and we said on the appeal that he was not in error in so doing. It clearly appears that the substance of this contention was passed on in Igo v. State, supra, and this proceeding is an attempt to override the decision heretofore rendered. The same may be said in re the defendant’s attempt to obtain a change of venue at the time of trial.
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BRETT, Presiding Judge.
This is an original petition for writ of habeas corpus brought by the petitioner, Jim Igo, who complains that he is being unlawfully detained in the state penitentiary by the warden thereof. He alleges the cause of said restraint is a certain judgment and sentence entered against him in the District Court of Coal County, Oklahoma, for murder, a second and subsequent offense. It is alleged that he murdered his wife on April 21, 1952, after other prior felony convictions. Conviction was had on the charge as alleged and judgment and sentence thereon imposed was affirmed herein on January 20, 1954, and rehearing denied on March 24, 1954. Igo v. State, Okl.Cr., 267 P.2d 1082.
In the proceeding herein, the petitioner attacks the jurisdiction of the Justice of the Peace Court and the jurisdiction of the District Court. The attack on the jurisdiction of the Justice of the Peace Court is to the effect that the petitioner [971]*971sought a continuance in said court sitting as a committing magistrate, which was denied. He further complains he moved for a change of venue, which was likewise denied. He further complains he thereafter sought time to present a petition in the District Court for mandamus to obtain a change of venue, which was denied. He contends that these matters constituted error defeating the jurisdiction of the District Court to try him. He queries, what more could he do? The answer is what numerous cases have held he should have done. He should have filed a motion to quash the information, which he did not do. The attack now sought to be made by habeas corpus is out of time and to no avail. 22 O.S.1951 § 492 reads, in part:
“ * * ⅜ he may, in answer to the arraignment, either move the court to set aside the indictment, or information or may demur or plead thereto.”
22 O.S.1951 § 493 reads:
“The indictment or information must be set aside by the court, in which the defendant is arraigned, and upon his motion in any of the following cases:
“1. When it is not found, indorsed, presented or filed, as described by the statutes * * * and that fact is known to the defendant at or before the time the jury is sworn to try the cause: Provided, that the defendant shall be conclusively presumed to know matters of record.”
In this connection, it has been repeatedly held that even where no preliminary is held at all in a felony case, that such matter must be raised by a plea in abatement or motion to quash the information. Williams v. State, 6 Okl.Cr. 373, 118 P. 1006; Buttry v. State, 18 Okl.Cr. 330, 194 P. 286; Perry v. State, 31 Okl.Cr. 250, 238 P. 229; Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258. In Perry v. State, supra, it was contended the trial court was without jurisdiction because the record failed to show any preliminary hearing was held. This contention was denied on appeal for the reason hereinbefore given. It has many times been held that objections to an information based on the absence of any essential preliminary proceeding should be made by motion to quash or by plea in abatement before pleading to the merits. Ralston v. State, 16 Okl.Cr. 634, 185 P. 831. In fact, the foregoing rule applies to any irregularities in the preliminary proceedings. Ingram v. State, 87 Okl.Cr. 223, 196 P.2d 534; Herren v. State, supra. Moreover, it has been held that when a defendant is arraigned on an information and pleads to the merits, he waives the right to a preliminary hearing, and if one was had, the right to obj ect to any irregularities therein. Sheller v. State, 58 Okl.Cr. 204, 52 P.2d 105; Ex parte Story, 88 Okl.Cr. 358, 203 P.2d 474, and numerous other cases to the same effect.
The record of the original appeal herein, Igo v. State, supra, which we have reexamined, does not reveal either a motion to quash the information or a plea in abatement, but to the contrary, discloses that the. defendant made no attack on the information on arraignment, but pled not guilty and stood trial thereon. It is thus apparent that the petitioner herein waived the right to object to any irregularities in the preliminary hearing by failure to file timely motion to quash the information.
The petitioner’s second contention is that he was illegally charged, tried, and sentenced for an alleged crime which is unknown to the Oklahoma Penal Code; murder, a second and subsequent offense. This contention was discussed and passed on in Igo v. State, supra [267 P.2d 1085], In syllabi 5 and 6, we said:
“Habitual criminal statute, Tit. 21 O.S.1951 § 52, authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the court must charge the jury on some included offense.
“Where in a prosecution for murder the State’s counsel from knowledge of the nature of testimony of State’s witnesses, are convinced that the trial [972]*972court would be justified, if not compelled by such testimony alone, to give ah instruction on the included offense of manslaughter in the first degree, it is, under such circumstances, proper to charge the crime as a second and subsequent offense under the provisions of Tit. 21 O.S.1951 §§ 51, 54, commonly known as the habitual criminal act.”
While there is no crime specifically defined as “murder, a second and subsequent offense,” it is apparent from the foregoing that under permissible conditions, the accused may be so charged.
Moreover, the statutes define the crime of murder, 21 O.S.1951 §§ 691 and 701, as the killing of a human being by another when perpetrated without authority of law with the premeditated design to effect the death of the person killed or of any other human being, etc. The statute also defines a second and subsequent offense, 21 O.S.1951 § 51, which has been repeatedly held does not define a crime but describes circumstances wherein one found guilty of a specific crime may be subjected to a greater punishment as a second and subsequent offender. Salisbury v. State, 80 Okl.Cr. 13, 156 P.2d 149; Spann v. State, 69 Okl.Cr. 369, 103 P.2d 389, and many other cases. The constitutionality of Sec. 51 has been passed upon and its clarity upheld. We do not find its terms vague and indefinite as contended for by the petitioner. Ex parte Hibbs, 86 Okl.Cr. 113, 190 P. 2d 156, certiorari denied Hibbs v. State, 335 U.S. 835, 69 S.Ct. 25, 93 L.Ed. 387; Ex parte Sanders, 95 Okl.Cr. 33, 238 P.2d 840, certiorari denied Sanders v. Waters, 342 U.S. 929, 72 S.Ct. 370, 96 L.Ed. 692. It is thus apparent there was no attempt on the part of the pleader herein to create a new crime not recognized by statute, but only an attempt to so plead as to meet the contingency of the defense which might establish facts that would require the trial court to charge the jury on the included offense of manslaughter in the first degree. Igo v. State, supra; Broyles v. State, 83 Okl. Cr. 83, 173 P.2d 235. In this regard, the prosecutor herein was not in error. The trial court believed the facts warranted the giving of an instruction on manslaughter in the first degree, and we said on the appeal that he was not in error in so doing. It clearly appears that the substance of this contention was passed on in Igo v. State, supra, and this proceeding is an attempt to override the decision heretofore rendered. The same may be said in re the defendant’s attempt to obtain a change of venue at the time of trial. This matter was disposed of on the appeal of the case on its merits, and may not now be raised by habeas corpus, since habeas corpus is not a substitute for appeal. In re Boyd, Okl.Cr., 302 P.2d 494; In re Goff, Okl.Cr., 312 P.2d 902. We have examined the information in this case and find that it states a cause of action for murder and also pleads facts of prior conviction. The information was never attacked in any manner. If the defendant had any objections thereto, they were waived.
Such being the state of the record, the trial court was thus vested with jurisdiction under the law of the subject matter, and having a jurisdiction of the person of the defendant and not exceeding its authority in pronouncing judgment and sentence, 21 O.S.1951 § 707; In re Goff, supra, the court had jurisdiction to try and convict.
We do not find anything occurred in the trial that was of so fundamental nature as to cause the trial court to lose jurisdiction, and we believe the defendant had a fair and impartial trial. The petitioner having failed to establish the right to relief by habeas corpus, the petition is accordingly denied.
POWELL, J., concurs.
NIX, J., concurs specially.