Hutton v. Amrine

111 P.2d 540, 153 Kan. 436, 1941 Kan. LEXIS 152

Opinion

The opinion of the court was delivered by

DawsoN, C. J.:

Petitioner asks his release from the custody of the warden of the penitentiary, urging matters on our attention of which judicial cognizance could only have been taken if a timely appeal had been presented. Habeas corpus is not a substitute for an appeal.

We have, however, permitted this application and its accompanying documents to be filed without deposit for costs, and have read them carefully. Excusing his defective pleadings and conclusions, which are quite obvious, the record he presents makes it altogether clear that nothing is presented which would justify the issue of process requiring the warden of the penitentiary to answer this application. The documents attached show that petitioner was regularly informed against in the district court of Montgomery county on the charge of willfully and feloniously passing a no-fund check, that he was duly arraigned, pleaded not guilty, was represented by counsel, tried by a jury and found guilty, and the jury polled; and before the allocution and sentence, evidence was adduced showing that petitioner was an habitual criminal — in that he had previously been convicted on three separate occasions for distinct and separate felonies, and in consequence of the verdict and showing of his former convictions, he was duly sentenced to life imprisonment under the pertinent provision of the crimes act, G. S. 1935, 21-107a. Petitioner’s contention that the statute under which he was sentenced is invalid has been repeatedly held to be wholly untenable. (Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372, 297 U. S. 695; Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502; Glover v. Simpson, 144 Kan. 153, 58 P. 2d 73, 299 U. S. 506.)

The application is denied and this proceeding dismissed.