Ex parte Wright

Ex parte Wright
1911 OK CR 267
116 P. 1113
6 Okl.Cr. 136
Case Number: No. A-1287
Decided: 08/01/1911
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. PUNISHMENT Intoxicating Liquors Constitutional and Statutory Provisions.

2. COURTS Jurisdiction Misdemeanor.

3. SAME Transfer of Causes.

Application by Bud Wright for writ of habeas corpus. Granted, and prisoner ordered discharged.

E.L. Spriggs, for petitioner.

Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. The petitioner, Bud Wright, was tried and convicted in two cases upon an information filed in the district

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court of the Fifth judicial district sitting in and for McCurtain county, of the crime of selling intoxicating liquors to a minor, and sentenced to be imprisoned in the state penitentiary at McAlester for a period of five years in each of said cases. Judgment and sentence was pronounced and was executed by delivering the petitioner to the warden of the state penitentiary at McAlester, where he has been and is now confined. Petitioner avers that said imprisonment is illegal and unauthorized because the act of the Legislature approved March 9, 1909 (Sess. Laws 1909, p. 164) under which said proceedings were had is unconstitutional and void, and petitioner prays for a writ of habeas corpus that he may be discharged without delay from said unlawful imprisonment. The Attorney General appearing for the respondent, R.W. Dick, warden of the state penitentiary at McAlester, confesses on the part of the state that a writ of habeas corpus be granted as prayed for.

In the case of Nowakowski v. State, infra, 116 P. 351, it was held by this court that the statute in question is unconstitutional and void and the offense charged in the information is only a misdemeanor of which a district court has no jurisdiction.

In the case of Wychoff v. State, infra, 116 P. 355, it was held that the district court has no power to receive, file, or take cognizance of an information charging a misdemeanor; and an information charging a misdemeanor filed in the district court cannot be transferred to the county court, but must be dismissed. See, also, Evans v. State, infra, 116 P. 356; Kester v. State, infra, 116 P. 356; Meek v. State, infra, 116 P. 356.

Under the foregoing decisions of this court the district court of McCurtain county did not upon the information filed in said cases acquire jurisdiction to try, convict, and sentence the petitioner for a felony under the statute in question.

It therefore follows that petitioner is unlawfully imprisoned under said judgment of conviction and commitment at the state penitentiary at McAlester.

Wherefore a writ of habeas corpus is allowed, and it is ordered that the petitioner, Bud Wright, be discharged from

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