Ex Parte Caveness

1909 OK CR 148, 105 P. 184, 3 Okla. Crim. 205, 1909 Okla. Crim. App. LEXIS 228

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 22, 1909
• Docket: No. 169.
• Status: Published

Opinion

PER CURIAM.

Petitioner alleges that he is unlawfully imprisoned at Tecumseh, in Pottawatomie county; that petitioner has been tried and convicted of the crime of violating the prohibition law in six cases; that his bail is fixed at the excessive and unreasonable amount of $250 in each ease, making the total bail in the sum of $1,500. It is further averred that petitioner’s imprisonment is illegal in this: That the verdict and judgment in each of said cases is illegal and unauthorized by law, because the sales which it is claimed were made by petitioner of intoxicating liquors, and upon which he was convicted in each case, were made at the special instance and request and solicitation of a special detective, who was then and there the agent of the state, being then and there a deputy sheriff of said county, and acting in his pretended purchase of said liquors under the express instructions of the sheriff and county attorney of said county.

We are of opinion, first, that petitioner has no cause for complaint, because the bail as fixed is very reasonable; second, that the question of insufficiency of the evidence'to sustain the verdict and judgment is hot a question to be reviewed in a habeas corpus proceeding. The statute provides (section 4867, Wilson’s Rev. & Ann. St. 1903) :

“That a prisoner shall not be discharged under a writ of habeas corpus, where it appears that he is held in custody by virtue of a commitment issued upon the final judgment of a court of competent jurisdiction.”

Appellate courts uniformly hold that the writ of habeas cor pus is not to take the place of a writ of error or the appeal. In re McNaught, 1 Okla. Cr. 528, 99 Pac. 24.

The writ of habeas corpus is therefore discharged.