Ex parte Faber

Ex parte Faber
1934 OK CR 110
35 P.2d 741
56 Okl.Cr. 177
Decided: 09/11/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

Habeas Corpus - Remedy not Available as Substitute for Appeal.

Original application by Frances L. Faber for a writ of habeas corpus. Writ denied.

Amos T. Hall, for petitioner.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, P.J. This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained of her liberty by the sheriff of Tulsa county; that she was convicted on her plea of guilty of the fraudulent destruction of insured property and was sentenced to

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serve a term of one year in the state penitentiary; that she was not afforded an opportunity to advise with counsel prior to her plea of guilty and was induced to plead guilty by the fire marshal by his promise that she would receive a suspended sentence; and for that reason the judgment is void. This court declined to issue the writ of habeas corpus but issued a rule to show cause. The sheriff in his return justified his restraint of petitioner under the judgment and sentence.

Petitioner relies mainly on the case of Ex parte Hollins, 54 Okla. Cr. 70, 14 P.2d 243. The writ was awarded in that case for the reason the entire proceedings were had in the presence of an imminent threat of mob violence and wherein the death penalty was imposed on an ignorant negro, of low mentality and unable to read or write, who was not represented by counsel. The decision in that case is not to be stretched to cover irregularities and errors, no matter how numerous, gross, and flagrant they may be in the proceedings preliminary thereto, unless they go to the question of jurisdiction. There is no rule better settled than that the writ of habeas corpus cannot be used in place of an appeal and that relief cannot be had in such a proceeding, unless the court was without jurisdiction. Ex parte Adams, 42 Okla. Cr. 27, 274 P. 485; Ex parte Pike, 50 Okla. Cr. 125, 296 P. 529; Ex parte Gardner, 54 Okla. Cr. 294, 19 P.2d 910. The matters alleged in the petition do not go to the jurisdiction of the court and do not render the judgment void.