Ex parte Story

Ex parte Story
1942 OK CR 163
131 P.2d 773
75 Okl.Cr. 367
Decided: 12/02/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

Habeas Corpus--Writ May not Be Used as Substitute for Appeal and Will not Be Issued Unless Judgment and Sentence Attacked Is Clearly Void.

Original proceeding by J. O. Story for a writ of habeas corpus to secure his release from the state penitentiary.

Demurrer to the petition sustained, and writ denied.

See, also, Story v. State, 73 Okla. Cr. 273, 120 P.2d 387.

J. O. Story, in pro. per.

Page 368

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.

BAREFOOT, P. J. Petitioner, J. O. Story, has filed in this court, on October 7, 1942, what is termed "Petition for Review in Error". There being no such pleading known to this court, it has been filed and will be titled as a petition for writ of habeas corpus.

This petitioner, J. O. Story, who is John O. Story, was charged, tried and convicted of the crime of murder in the district court of Bryan county on the 18th day of October, 1939, and was sentenced to serve a life term in the state penitentiary at McAlester for the killing of his wife, Ethel Story. He is now confined in the State Penitentiary. His case was appealed to this court and oral argument was had thereon on two different occasions. An opinion was rendered by this court on the 17th day of December, 1941, in which the judgment and sentence of the district court of Bryan county was affirmed. Story v. State, 73 Okla. Cr. 273, 120 P.2d 387. In the hearings on the appeal in this case, careful consideration was given by the court to all alleged errors presented in the trial thereof. The petition is based upon these alleged errors and many affidavits have been filed by petitioner with reference to the evidence presented, and evidence which he claims was not presented. This court, in conformity with the rules many times heretofore announced, cannot examine the weight of the evidence or the sufficiency thereof on habeas corpus. It is only when the judgment and sentence is void that relief may be given.

As we have so often announced, petitioner's only opportunity for relief is from the Governor of the state, in whom the Constitution has placed the power of pardon and parole.

Page 369

For the reasons above stated, the demurrer of the Attorney General, filed in behalf of the warden of the penitentiary, is sustained and the petition for writ of habeas corpus is denied.