Ex parte Herren

Ex parte Herren
1942 OK CR 52
124 P.2d 276
74 Okl.Cr. 154
Decided: 03/25/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corp0us-Writ not Issued Where Questions Should Have Been Presented on Appeal. The court will not issue writ of habeas corpus where accused has appealed his judgment of conviction, the judgment is affirmed and questions raised in habeas corpus proceedings were in existence and known to petitioner at time of appeal and were matters which properly should have been presented by appeal.

2. Same. This court will riot permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to a new trial or his release from custody, unless the question raised is such as to show that the judgment is wholly void.

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Original proceeding in habeas corpus to secure release of Lee Herren from state penitentiary. Writ denied.

Ogden & Wallace, of Ardmore, for petitioner.

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

JONES, J, This, is an original proceeding in habeas corpus wherein the petitioner seeks his release from the State Penitentiary.

The petitioner was convicted in the district court of Carter county of the crime of receiving stolen property and sentenced to serve one year and one day in the State Penitentiary. His conviction was appealed to this court and the judgment was affirmed. Lee Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258.

In this proceeding it is contended by petitioner that his commitment is void for the reason that at the time of his preliminary examination he filed an application for a change of venue; and, in addition thereto, a motion for a continuance because of the absence of his counsel, and that the justice of the peace declined to continue said cause or to grant said change of venue which was tantamount to a denial of counsel in the preliminary examination.

All of the matters and facts set forth in the petition herein, if true, existed at the time of the appeal. This court will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to a new trial or his release from custody. To do so would not be conducive to the efficient administration of our criminal laws. If this were not so, then

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a criminal case would never end, but after trial and conviction the court would be called upon to again try the issues by habeas corpus.

The demurrer of the respondent to the petition filed herein is sustained, and the writ is denied.