Ex Parte Doza

1917 OK CR 77, 164 P. 130, 13 Okla. Crim. 287, 1917 Okla. Crim. App. LEXIS 73

Opinion

DOYLE, P. J.

On the 11th day of November, 1916, a duly verified petition for writ of habeas corpus was presented to the Presiding Judge, averring, in substance, that the petitioner, Owen Doza, was unlawfully restrained of his liberty by W. B. Nichols, chief of police of Oklahoma City, upon a mittimus issued upon a judgment of the municipal court of said city on November 1st, wherein the petitioner was adjudged guilty of being drunk, and was sentenced to pay a fine of $99 and to be confined for 90 days in the city jail; that petitioner by reason of his poverty was unable to procure bond for appeal in said case, and further averring:

“That the ordinance of said city authorizing punishment as above set forth for being drunk is in conflict with the laws of the State of Oklahoma, in that the punishment prescribed by the state for said offense is a fine of $10, no more or no less, and for the reasons above stated his imprisonment is wholly illegal and without authority of law.”

The writ was issued, and in obedience to the writ petitioner was brought before the court on the following day and return made to the writ. The issue in this case is the same as in the case of Ex parte Johnson, ante, p. 30, 161 Pac. 1097. For the reasons given in the opinion in that case we are of opinion that the proceedings had upon the trial and conviction of the petitioner in the municipal court were illegal and void, and it is ordered that he be discharged.

ARMSTRONG and BRETT, JJ., concur.