Ex parte Moore

Ex parte Moore
1948 OK CR 116
200 P.2d 454
88 Okl.Cr. 105
Decided: 11/17/1948
Oklahoma Court of Criminal Appeals

( Syllabus.)

1. Habeas Corpus Presumption of Regularity in Proceedings. Every presumption of law must be indulged in favor of the regularity of the proceedings in courts of record.

2. SameWrit May not Be Used as Substitute for Appeal. The writ of habeas corpus does not serve as an appeal and review of the facts.

3. SameConvict not Released on Habeas Corpus Unless Judgment and Sentence Void. One imprisoned in the State Penitentiary on plea of guilty to charge of burglary in second degree will not be released on habeas corpus unless the judgment and sentence under which he is serving is void.

4. SameCriminal Court of Appeals May not Modify Sentence in Original Habeas Corpus Proceeding. Power of Criminal Court of Appeals to modify sentence is limited to appealed eases, and cannot be exercised in an original habeas corpus proceeding.

Original proceeding in habeas corpus by Elmer Moore to secure his release from confinement in the State Penitentiary. Writ denied.

Elmer Moore, No. 48417, petitioner, pro se.

Mac Q. Williamson, Atty Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.

BAREFOOT, P. J. Elmer Moore has filed petition in this court for writ of habeas corpus, seeking his release from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence of the district court of LeFlore county, sentencing him to serve a period of two years for the crime of burglary in the second degree.

A response was filed by the Attorney General on behalf of the respondent, Warden C. P. Burford, denying

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all of the allegations of the petition, and setting up the judgment and sentence under which petitioner is being held.

At the time this case was submitted, no appearance was made by petitioner, and no proof was offered to sustain the allegations of his petition.

Petitioner's contention is that he was denied a preliminary examination. There is no proof in the record before us to support this contention, and in the absence of such proof, it will be presumed that petitioner was given every right to which he was entitled under the law. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113; Ex parte Owen, 82 Okla. Cr. 415, 171 P.2d 868.