Ex parte Gardner

Ex parte Gardner
1933 OK CR 20
19 P.2d 910
54 Okl.Cr. 294
Decided: 03/03/1933
Oklahoma Court of Criminal Appeals

(Syllabus.)

Habeas Corpus Writ not to Be Used in Lieu of Appeal.

Application by A.J. Gardner for a writ of habeas corpus. Writ denied.

John J. Carney, for plaintiff in error.

J. Berry King, Atty. Gen., for the State.

EDWARDS, P.J. Petitioner alleges that he is unlawfully restrained of his liberty by the warden of the state penitentiary; that in May, 1913, he was charged in Pottawatomie county with the crime of murder; that he entered a plea of guilty and was sentenced to imprisonment for life; and that he has served since said time. He alleges that before entering his plea of guilty he was made to believe by the county attorney if he would plead guilty he would not receive a sentence of more than five years. That he did not have counsel of his own choosing but relied upon the county attorney, that the court did not advise him of his right to have counsel appointed and did not appoint counsel for him. The state has demurred to the petition. The demurrer must be sustained. The matters alleged do not go to the jurisdiction of the court and do not render the judgment void. It is so well settled as to amount to a truism that habeas corpus may be resorted to only when the judgment is void and it cannot be resorted

Page 295

to in lieu of an appeal, no matter how flagrant the errors in the proceeding, unless they are such as to render the judgment void.