Ex parte Spence

Ex parte Spence
1923 OK CR 333
220 P. 479
25 Okl.Cr. 283
Decided: 12/01/1923
Oklahoma Court of Criminal Appeals

(Syllabus.)

Habeas Corpus Conviction under Unconstitutional Law.

Habeas corpus by V.W. Spence for release from custody. Writ allowed, and petitioner discharged.

C.R. Fegan, for petitioner.

The Attorney General, and N.W. Gore, Asst. Atty. Gen., for respondent.

DOYLE, J. This is a petition for writ of habeas corpus for the discharge of V.W. Spence, from the penitentiary at McAlester, wherein it is alleged that he is unlawfully restrained of his liberty by J.H. Townsend, warden; that the cause of said restraint is a commitment issued by the district court of Logan county, C.C. Smith, Judge, on a charge that he did have in his possession mash fit for distillation, for the purpose of using said mash for the distillation of spirituous liquors; which judgment was rendered on the 10th day of September, 1923, wherein he was sentenced to be confined in the penitentiary at McAlester for a term of one year and to pay a fine of $100; and alleging that said restraint is unauthorized because the act approved February 5, 1923, chapter 1, Session Laws 1923, making it a felony

Page 284

to possess mash, etc., fit for distillation, is unconstitutional and void as determined by the decision of this court in the case of In re D.E. Smith, 24 Okla. Cr. 415, 218 P. 708.

The Attorney General concedes that the writ should issue, and the petitioner be discharged.