In re Day

In re Day
1946 OK CR 32
167 P.2d 380
82 Okl.Cr. 139
Decided: 03/20/1946
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus-inquiry Into Question of Guilt. After an indictment or information has been filed in the district court and before trial, the question of guilt or innocence will not be inquired into on habeas corpus.

2. Same--Order of Commitment-Nature of. Before an indictment or information is filed, the duty of a court in habeas corpus proceedings is similar to that of a magistrate in a preliminary examination and determines only the particular restraint of which complaint is made. If court hearing the matter discharges the accused, its order would not be final as prosecutor may again file complaint and have another preliminary examination.

3. Same-Burden on Petitioner to Show Unlawful Restraint- Writ Denied. Burden of proof in habeas corpus proceeding is on petitioner to show unlawful restraint and where this burden is not sustained, the writ of habeas corpus will be denied.

Original proceeding in habeas corpus by Jack Day, on behalf of Leo Day, to secure his release from confinement in the Tulsa County jail. Writ denied.

John L. Ward, of Tulsa, for petitioner.

Randell S. Cobb, Atty. Gen., for respondent.

Page 140

JONES, P. J. The petitioner, Leo Day, acting by and through his father, Jack Day, instituted this original proceeding in habeas corpus to secure his release from confinement in the county jail of Tulsa county.

The principal contention of this petitioner was that he was a minor and that the evidence introduced at his preliminary examination before the court of common pleas of Tulsa county was wholly insufficient to show that any crime had been committed, and, also, that there was no probable cause to show that the petitioner had committed a crime. At the request of counsel for petitioner, the hearing on said petition was continued from time to time on account of the illness of said counsel. Counsel for petitioner did not recover from his illness and passed away during the pendency of this action. Thereafter, said cause was set for hearing and submitted upon the petition and demurrer thereto presented on behalf of respondent.

There is not attached to the petition a certified copy of the transcript of the evidence taken at the preliminary examination, so we are unable to determine just what proof was introduced at that time. There is, also, no allegation nor proof as to whether an information had been filed in the district court of Tulsa county against the petitioner.

This court has held that, after an indictment or information has been filed in the district court, the question of guilt or innocence will not be inquired into on habeas corpus. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461, following Ex parte Patman, 20 Okla. 846, 95 P. 622.

Before an indictment or information is filed, the duty of a court in a habeas corpus hearing is similar to that of a magistrate in a preliminary examination and

Page 141

determines only the particular restraint complained of the court hearing the matter discharge the accused, its order would not be final, as the prosecutor could again file a complaint and have another preliminary examination. Ex, parte Johnson, supra; Ex parte Bevill, 6 Okla. Cr. 145, 117 P. 725, 726-