Ex parte Shadday

Ex parte Shadday
1948 OK CR 74
196 P.2d 531
87 Okl.Cr. 219
Decided: 07/28/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus-Writ not Substituted for Appeal. The writ of habeas corpus cannot be substituted for an appeal.

2. Same-Necessary Showing That Judgment and Sentence Void, or Lack of Jurisdiction of Court. Before granting relief by habeas corpus, it is necessary to find that the judgment and sentence is void, or that the court did not have jurisdiction of the person or subject matter, or did not have the power to render the judgment and sentence.

Original proceeding in the matter of the application of Edward Shadday for writ of habeas corpus to be released from the Oklahoma State Penitentiary at McAlester, Oklahoma. Writ denied.

Edward Shadday, pro se.

Mac Q. Williamson, Atty. Gen., for the State.

BAREFOOT, P. J. The petitioner, Edward Shadday, has filed in this court his application for writ of

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habeas corpus , asking his release from the State Penitentiary at McAlester, Okla., where he is confined by reason of a judgment and sentence of the district court of McCurtain county, entered on January 2, 1948.

Attached to the petition is a copy of the information filed against petitioner in McCurtain county, charging him with larceny of domestic animals, to wit: "one certain yearling, the property of John Fradday", etc.; a certified copy of the judgment and sentence entered on his plea, of guilty, and also an affidavit and letter written by petitioner's codefendant, (who also entered a plea of guilty and is now in the penitentiary) stating that petitioner did not participate in the stealing of the "yearling" as charged, but that he only hauled the same in his truck, and received pay therefor. This was a question of defense which could have been presented at the trial, if petitioner had desired to do so. It has often been held that the writ of habeas corpus cannot be substituted for an appeal.