Ex parte Coker

Ex parte Coker
1927 OK CR 257
258 P. 1056
38 Okl.Cr. 84
Decided: 08/31/1927
Oklahoma Court of Criminal Appeals

(Syllabus.)

Preliminary Examination Sufficiency of Evidence to Hold Defendant.

Application by J.E. Coker for a writ of habeas corpus to be directed to C.O. Hooper, sheriff of Cotton County. Writ denied.

Walter Hubbell and Morris & Tant, for petitioner.

Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Toby Morris, Co. Atty., of Walters, for the State.

DOYLE, P.J. This is a petition for writ of habeas corpus filed in this court June 9, 1927, whereby J.E. Coker seeks to obtain his discharge from the Cotton county jail on the ground that he is unlawfully restrained of his liberty by C.O. Hooper, sheriff.

It is averred that he is held in custody by virtue of a commitment issued by one Porter M. McCullum, justice of the peace of Devol, as a committing magistrate, upon a charge of embezzlement of the sum of $3,500 from the Walters National Bank of Walters.

It is further averred that the evidence introduced on the preliminary examination was insufficient to show that a crime was committed, of which he was guilty, and that there was no legal or competent evidence to show probable cause to believe petitioner guilty of the crime of embezzlement as charged; that said commitment was

Page 85

so issued without authority of law, and the same is therefore null and void.

A rule to show cause was issued, returnable June 16th, at which time upon the hearing had the writ was denied.

We deem it sufficient to say that on a preliminary examination it is not necessary that the evidence on which the accused is held to answer be sufficient to support a conviction. Under the statute (section 2497, Comp. Stats. 1921) it is enough if it be shown that the offense was committed, and that there is sufficient cause for believing the defendant guilty thereof. Ex parte Roberts, 31 Okla. Cr. 314, 238 P. 867; Ex parte Miller, 29 Okla. Cr. 301, 233 P. 775.