Ex Parte Wiggins

1928 OK CR 215, 267 P. 868, 40 Okla. Crim. 189, 1928 Okla. Crim. App. LEXIS 162

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 31, 1928
• Docket: No. A-7035.
• Status: Published

Opinion

PER CURIAM.

This is an original application for a writ of habeas corpus. The petitioner, in substance,^ alleges that he is illegally restrained of his liberty by Ben B. Dancy, sheriif of Oklahoma county, setting out that a charge of felony, the crime of incest, had been filed against petitioner before A. W. McWilliams, a justice of the peace of Oklahoma county, and that thereafter the proceeding was transmitted to the district court of Oklahoma county without petitioner having had or waived a preliminary; that petitioner had duly challenged the jurisdiction of the district court by motion to quash, which had been overruled, and thereafter petitioner was tried in the district court, and had been sentenced to serve a term of five years in the state penitentiary; that the district court was without jurisdiction in said cause, and restraint of petitioner illegal. A rule to show cause was issued in this court. The sheriff has filed his return and a hearing had, at which there was introduced in evidence a transcript of the proceedings and the files and records in said cause.

The record discloses that petitioner was duly charged before a justice of the peace; that he appeared by his counsel, John J. Carney, a member of the bar, waived a preliminary; that a certified copy of the transcript was duly filed in the district court. These records import verity, and from them it is clearly made to appear that the district court had jurisdiction of the case, and that the restraint of petitioner is legal.

The application for writ of habeas corpus is denied, and the ease dismissed.