Oklahoma ex rel Attorney General v Higgins

Oklahoma ex rel Attorney General v Higgins
1943 OK CR 50
137 P.2d 273
76 Okl.Cr. 321
Decided: 04/14/1943
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Prohibition-Writ to Be Issued Only in Cases of Necessity. The prerogative writ of prohibition should be issued with forbearance and caution, and only in cases of necessity.

2. Same-Office of Writ. The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping or exercising unauthorized jurisdiction.

3. Same. Prohibition will lie only to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior court, or to prevent some great outrage upon the settled principles of law and procedure.

4. Same. Prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law.

5. Same--Scope of Inquiry on Application for Writ. On application for a writ of prohibition the only inquiry which will be entertained is as to the jurisdiction of the court against which the relief is invoked, and, consequently, this court will not investigate the merits of the cause before the inferior court.

6. Same--Writ not Issued for Sole Purpose of Establishing Principle to Govern in Other Cases. This court will not issue a writ of prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases.

7. Habeas Corpus-Remedy Under Bill of Rights May not Be Impaired by Statute. Section 10 of the Bill of Rights provides: "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state." Held, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by statute, and the cases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty.

8. Same--Power of Districts Courts to Issue Writs. Section 10 of art. 7 of the Constitution provides: "The district courts, or any judge thereof, shall have power to issue writs of habeas corpus."

9. Same--Statutory Provisions. The statutes of this state pro vide: "Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint and shall be delivered therefrom when illegal". 12 O. S. 1941 § 1331. "Writs of habeas corpus may be granted by any court of record in term time or by a judge of any such court, either in term or vacation;

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and upon application the writ shall be granted without delay." 12 O. S. 1941 § 1333.

Application by the State, on the relation of the Attorney General, for a writ of prohibition to be directed to R. W. Higgins, Judge of the 15th Judicial District of Oklahoma, to prohibit further proceedings in Case No. 18,596, entitled: In re Petition of Raymond Greer for Writ of Habeas Corpus. Writ of prohibition denied.

This is a petition for a writ of prohibition to restrain the respondent as district judge of the district court of Pittsburg county from further proceeding in a habeas corpus action, pending in said district court, wherein one Raymond Greer is petitioner.

Omitting formal parts, the petition reads as follows:

"Comes now the State of Oklahoma, on relation of Mac Q. Williamson duly elected, qualified and acting Attorney General of the State of Oklahoma, and respectfully shows to this Honorable Court that in Cause No. 4259 in the District Court of Pittsburg County, entitled State of Oklahoma v. Raymond Greer, a, judgment and sentence was entered on the 10th day of February, 1940, sentencing said Raymond Greer to a term of two years for second degree forgery, in the State Penitentiary, upon a plea of guilty entered in said court on said date, and that on the same date an order of commitment was executed by the judge of said court ordering and directing said Raymond Greer to be transported to the State Penitentiary for delivery to the warden thereof, and ordering that he be confined in said penitentiary until said sentence was duly served.

"That on the same date and in Cause No. 4360, then pending in the District Court of Pittsburg County, Oklahoma, entitled State of Oklahoma v. Raymond Greer, upon a plea of guilty entered in said Court on the 10th day of February, 1940, said Raymond Greer was sentenced to serve a term of two years in the State Penitentiary for

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second degree forgery, and it was provided in said sentence that same should run concurrently with the sentence pronounced in Cause No. 4259, and that on the same date an order of commitment was issued and signed by said court directing that said Raymond Greer be transported to the State Penitentiary and delivered to the warden thereof and confined therein until said sentence was duly served.

"That under the rules and regulations of said penitentiary, and in accordance with said sentences entered in Cause No. 4259 and Cause No. 4360, said terms of imprisonment were completed and fully served, and on August 15, 1941, said Raymond Greer was discharged by the warden of said penitentiary, as more fully appears from a true and correct copy of both of said commitments, together with the prison records in said cases, duly certified by Lewis H. Lindsey, record clerk of said State Penitentiary, attached hereto, marked Exhibit A and made a part hereof.

"Petitioner further shows to the court that while said Raymond Greer was incarcerated in the Oklahoma State Penitentiary, and while serving the sentence in Cause No. 4259 and Cause 4360, aforesaid, he escaped from said penitentiary and left the State of Oklahoma, on December 8, 1940, and was apprehended and returned to said Penitentiary on December 24, 1940, where he remained until discharged by said warden, as hereinbefore set forth, on August 15, 1941.

"That on August 15, 1941, an information was filed in the District Court of Pittsburg County in Cause No. 4382, styled State of Oklahoma v. Raymond Greer, and said Raymond Greer was duly arrested under said information, and after being duly arraigned and having entered a plea of guilty, was, on the 27th day of September, 1941, found guilty of the crime of escape; that said Raymond Greer was pursuant to said plea of guilty and judgment and sentence of said court, delivered to and received by the warden of the State Penitentiary at McAlester, Oklahoma, on the 30th day of September, 1941, and thereafter

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confined in said penitentiary in accordance with said sentence, and that he is still confined therein and held by said warden, but that under the rules and regulations of said penitentiary, and considering the credits allowed for good conduct and work, the term for which said Raymond Greer was sentenced in Cause No. 4382 will not expire and he will not be entitled to be released from said penitentiary until December 24, 1942, as more fully appears from the order of commitment and sentence, together with the prison record of said Raymond Greer, duly certified by Lewis H. Lindsey, record clerk of the State Penitentiary, hereto attached, marked Exhibit B and made a part hereof.

"Plaintiff further shows to the court that on the 9th day of November, 1942, in Cause No. 18596 in the District Court of Pittsburg County, Oklahoma, a petition was filed by said Raymond Greer for a writ of habeas corpus, directed against the warden of the State Penitentiary, asking that said Raymond Greer be discharged and released from further imprisonment by said warden. That thereafter a response was duly filed by Fred Hunt, warden of said penitentiary, together with a stipulation of facts agreed upon by the attorney for said petitioner, Guy L. Andrews, and the attorneys for the respondent, Paul Gotcher, County Attorney of Pittsburg County, Mac Williamson, Attorney General, and J. Walker Field, Assistant Attorney General. That thereafter, and on the 30th day of November, 1942, said application for writ of habeas corpus came on for hearing, and journal entry was entered in said cause by the District Judge of Pittsburg County, under which said journal entry further hearing on said petition for writ of habeas corpus and final action thereon was continued until December 3, 1942; all of which more fully appears from a true, full and complete transcript of the record in Cause No. 18596, attached hereto, marked Exhibit C and made a part hereof.

"Petitioner further shows to the court that under the plea of guilty entered by the petitioner, Raymond Greer, in Cause No. 4382 in the District Court of Pittsburg

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County, to the crime of escape from said penitentiary, and pursuant to the provisions of 21 O. S. 1941, section 433, [443] said crime was punishable 'by imprisonment for a term of not less than two years nor more than seven years' and that under the statutes of this State and the decisions of this court construing the same, said sentence did not commence until said defendant was delivered to the warden of the State Penitentiary, pursuant thereto, and that the action of the court in providing in said sentence and commitment that 'said term of imprisonment (is) to be at and from the expiration of the sentence he was serving at the time of escape' was surplusage and of no force or effect, but that said sentence, pursuant to the general statutes of Oklahoma and the construction placed thereon by this court, did not begin to run until the actual delivery of said defendant, Raymond Greer, into the keeping and custody of the warden of the penitentiary.

"Petitioner further shows to the court that at the time said application for writ of habeas corpus was filed in the District Court of Pittsburg County in Cause No. 18596, now pending in said court, more than two terms of court has elapsed since the entry of said judgment on the 27th day of September, 1941, and that by reason thereof said district court had no authority or jurisdiction to disturb or change said sentence theretofore pronounced, and had no authority to issue any order or writ to relieve said defendant of fully serving and completing his said two-year sentence, until after same had been fully completed and served pursuant to said judgment and the rules and regulations of said State Penitentiary, the records of which show that said sentence would not be complete and said time served until the 24th day of December, 1942.

"Petitioner further shows to this court that, as shown by the journal entry entered in said cause on October 30, 1942, the Judge of the District Court of Pittsburg County intends to overrule the objections and protests of the County Attorney of Pittsburg County and the

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Attorney General of the State of Oklahoma, and has announced his intention to sustain said petition for writ of habeas corpus as prayed for in Cause No. 18596. That if said writ is granted by said court ordering and directing said Raymond Greer to be relieved by the warden of said penitentiary, under the statutes and decisions of this court said warden and the State of Oklahoma are precluded by said judgment from a right of appeal and that said petitioner herein, under the facts above set forth, has no adequate or complete remedy at law in the premises, and by reason thereof said petitioner is entitled to a writ of prohibition from this court, directed against Honorable R. W. Higgins, Judge of the District Court of Pittsburg County, enjoining and restraining him from in any way attempting to modify, change or nullify the judgment and sentence of said court pronounced against said Raymond Greer on the 27th day of September, 1941, and restraining said district judge from granting said writ of habeas corpus and releasing said Raymond Greer from the State Penitentiary before completing and serving his full term pursuant to said judgment and decree of the district court theretofore entered against him, and pursuant to which said Raymond Greer was delivered to and is now held by the warden of said penitentiary.

"Wherefore petitioner prays that by reason of the facts and records herein set forth and the laws of this state with respect thereto, this court make and enter an order herein for an alternative writ of prohibition directing Honorable R. W. Higgins, District, Judge of Pittsburg County, Oklahoma, to show cause before this court within-days from the issuance of said alternative writ, why said writ of prohibition should not issue and be made permanent as prayed for herein; that upon final hearing hereon this court issue a permanent writ of prohibition against said district judge prohibiting and restraining him from granting said habeas corpus now pending before him in Cause No. 18596, and restraining him from makinig any order changing or modifying in any way the judgment entered in Cause No. 4382, or

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directing said warden to release said Raymond Greer until he has fully served the term for which he was sentenced on September 27, 1941."

Attached to said petition is the following stipulation :

"In the District Court in and for Pittsburg County, Oklahoma,

"In Re Petition of Raymond Greer for Writ of Habeas Corpus. "No. 18596

"Stipulation

"It is hereby agreed by and between Guy L.. Andrews, attorney for petitioner in the above action, and Paul Gotcher, county attorney, and Mac Q. Williamson, Attorney General, by and through J. Walker Field, Assistant, attorneys for and appearing on behalf of Fred Hunt, Warden of the State Penitentiary, as follows:

"That the records of the penitentiary as certified and attached herewith by Lewis H. Lindsey, record clerk of said penitentiary, are the true and correct copies of the official records of said penitentiary as to Raymond Greer, petitioner herein, concerning his reception and delivery to said penitentiary pursuant to the judgment and sentence of the district court pronounced and entered on the 27th day of September, 1941, a copy of which is herewith attacheed and asked to be considered a part hereof.

"It is further agreed and stipulated that, under the rules and regulations of said penitentiary and after allowing time for good behavior, said sentence, under the provisions thereof that the same would commence from the expiration of the sentence he was serving at the time he escaped, to-wit, the sentence in Cause No. 4259 of the District Court of Pittsburg County, as entered in said court on the 10th day of February, 1940, would expire on the 9th day of November, 1942, but that if said sentence in said Cause No. 4382 commenced from the date of the reception of said prisoner at said penitentiary, towit, the 30th day of September, 1941, then said sentence would not expire and said Raymond Greer be eligible for

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release from said penitentiary until the 24th day of December, 1942.

"It is further agreed and stipulated that the petitioner, Raymond Greer, in cause No. 4259 in the District Court of Pittsburg County, after a plea of guilty, was on the 10th day of February, 1940, sentenced to serve a term of two years for the crime of 2nd degree forgery; that on the same date and in cause No. 4360 in said District Court of Pittsburg County, the said petitioner, Raymond Greer, after a plea of guilty to the charge of attempted forgery in the 2nd degree was sentenced to a term of two years from the date of his incarceration, but which sentence and judgment provided that said sentence in said last case was to run concurrently with the sentence in case No. 4259; that thereafter and after due allowance for good behavior under the rules and regulations of said penitentiary, said petitioner, Raymond Greer, fully served both of said terms for which he had been sentenced in said causes Nos. 4259 and 4360, as more fully appears from a letter and the official prison record of said Oklahoma State Penitentiary, as written and compiled by Lewis H. Lindsey, the record clerk or said penitentiary, and which record so prepared by said Lewis H. Lindsey it is agreed is the true copy of said penitentiary.

"It is further agreed and understood that the entering into this stipulation shall not in any wise be considered a waiver of the part of said respondent, Fred Hunt, warden of said penitentiary, as to his plea to the jurisdiction of said court and the authority of said court to entertain said writ of habeas corpus or the authority to grant the same.

"Dated this 25th day of November, 1942.

"Raymond Greer, Petitioner,

"By Guy L. Andrews, Attorney

"Fred Hunt, Warden

"By Paul Gotcher, County Attorney

"Mac Q. Williamson, Attorney General

"By J. Walker Field, Assistant."

The petition, with exhibits attached, covers 25 pages.

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Upon the filing of the petition, December 1, 1942, an alternative writ issued as prayed for, answerable December 7th. On said date, the response of R. W. Higgins, district judge, was filed in this court.

Omitting title and formal parts, it reads as follows:

"Response of R. W. Higgins, District Judge.

"Comes now R. W. Higgins and respectfully shows to the court that for response to the writ of prohibition filed herein he denies, admits and alleges as follows:

"He admits that Raymond Greer had prior to the 15th day of August, 1941, been confined in the Oklahoma State Penitentiary at McAlester, Oklahoma, for an offense as alleged in the petition filed herein, to-wit, second degree forgery and was sentenced in cause 4259 of the District Court of Pittsburg County, Oklahoma.

"He further admits that the records attached to said petition are true and correct records appearing in the office of the record clerk of the State Penitentiary.

"He further admits that while serving sentence in cause 4259 and 4260 the said Raymond Greer escaped from said penitentiary and was apprehended and returned to the penitentiary on December 24, 1940, where he remained at least until August 15, 1941.

"Your respondent further says that after such arrest by virtue of section 431, Title 21, O. S. 1941, as follows:

" 'Re-arrest of escaped prisoners-Every prisoner confined upon conviction for a criminal offense, who escapes from prison, may be pursued, retaken and imprisoned again, notwithstanding the term for which he was sentenced to be imprisoned may have expired at the time when he is retaken, and he shall remain so imprisoned until tried for such escape, or discharged, on a failure to prosecute therefor.'

It was the duty of the warden of the penitentiary, when he had been retaken, to have held said Raymond Greer

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in the penitentiary until he was tried for such escape or discharged, and your respondent alleges that from the date of his escape until the date of his plea of guilty of the charge of escape, he was always subject to the custody and control of the warden of the State Penitentiary.

"Further your respondent admits that the said Raymond Greer pleaded guilty to the charge of escape on the 27th day of September, 1941, and that he was sentenced to serve a term of two years in said penitentiary. Your respondent shows that under the rules and regulations of the said penitentiary and under the laws of the State of Oklahoma the term of imprisonment of the said Raymond Greer would, as this respondent believes, have expired on the 9th day of November, 1941, this being by reason of section 443, Tit. 21 O. S. 1941, of the statutes of Oklahoma, reading as follows:

" 'Escape from State Penitentiary or State Reformatory-Punishment-Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years, to commence from the expiration of the original term of his imprisonment.'

"Your respondent further shows that he admits that the said Raymond Greer filed his petition for writ of habeas corpus against the warden of the State Penitentiary and said warden appeared in said cause and your respondent says he had jurisdiction over the persons and the cause of action and he was vested with the power and authority and duty to pass upon the matters and things involved in the hearing of said writ.

"He further admits that be would have discharged the prisoner for the reason that in the exercise of his judicial discretion and his interpretation of the laws as written he believed and now believes and would have held

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that by reason of the things set forth in section 431 and in section 443 of Title 21, O. S. 1941, that the term upon that date expired.

"Your petitioner further shows that he admits that there would have been no appeal from his order, but he respectfully suggests to this Honorable Court that the action here undertaken is an attempt to do by indirection that which could not be done directly. He expressly denies that he at any time acted or would hereafter act arbitrarily, capriciously or oppressively but that he would have acted and hereafter will act in accordance with his belief as to what comprises the substantive laws of the State of Oklahoma and in the protection of the rights of the citizens given under the Bill of Rights of the Constitution of the State of Oklahoma.

"Wherefore, he respectfully prays that he be discharged from the process of this Honorable Court and that the injunction heretofore issued against him be discharged and set aside and held for naught."

In reply to response, filed December 8, 1942, petitioner expressly denies that the said Raymond Greer was either in the custody and control of the warden of the State Penitentiary, or that under the provisions of 21 O. S. 1941 § 431 "it was the duty of the warden of said penitentiary to have held said Raymond Greer in the penitentiary until he was tried for said escape or discharge."

"Petitioner, further replying to the response herein, expressly denies that said District Court of Pittsburg County had authority, under any laws of the State of Oklahoma or under the provisions of 21 O. S. 1941 sec. 431, after plea of guilty to the crime of escape, to enter a judgment and sentence or commitment for any less period of time than two years in the State Penitentiary, and that said court was without authority to provide in said sentence and commitment that 'said term of imprisonment

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be at and from the expiration of the sentence he was serving at the time of escape.'

"In the case of Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A., N. S., 625, 139 Am. St. Rep. 967, it was held:

" 'The time fixed for execution of a sentence, or the commencement of its execution, is not one of its essential elements, and, strictly speaking, forms no part of the judgment and sentence, which is the penalty of the law as declared by the court; while the direction with respect to the time of carrying it into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of imprisonment imposed, unless remitted by death or some legal authority.'

"See, also, the case of Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993, citing with approval and following the same rule announced in the above case; and the case of Ex parte Riggert, 33 Okla. 303, 125 P. 485; this last case being an opinion by Justice Williams and specifically affirming the holding of Judge Doyle in the Eldridge case, supra. This rule was also followed and reaffirmed in a recent case of this Court-Ex parte Porter, 60 Okla. Cr. 327, 64 P.2d 1235, 1236, in which Judge Doyle, in discussing a sentence by the District Court of Okmulgee County which provided in part that, 'Said term of imprisonment to begin at and from the 23rd day of March, A. D. 1929,' followed the same rule announced in the Eldridge case." * * *

"Further replying to the response filed herein, petitioner expressly denied that the action of the petitioner herein in applying for the writ of prohibition was 'an attempt to do by indirection that which could not be done directly.' On the contrary, it is respectfully submitted that this application for writ of prohibition was in exact conformity with the proceedings instituted in this court for a writ of prohibition in 1925 in the case of State ex rel. Mitchell, County Attorney, v. Swindall,

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District Judge, 33 Okla. Cr. 210, 241 P. 456. Under the proceedings in that case the Court held that the state had no adequate complete remedy at law and that said writ of prohibition should be granted. * * *

"Wherefore, petitioner prays that said writ of prohibition be sustained and made permanent."

On December 12th, counsel for respondent, answering the reply states:

"In our judgment, the statute embodying both the substantive and procedural law are, in their strict sense, statutory and distinguished from the general provisions of the Criminal Code. It is distinctive;

"(1st) Because it is the only offense where the minimum sentence is necessarily confinement in the penitentiary falling in the misdemeanor class;

"(2nd) It is the only offense where it is made mandatory to confine the prisoner while awaiting trial, in the penitentiary instead of the common jails of the State;

"(3rd) It is the only offense, when the prisoner has no other conviction hanging over him, where the Legislature has made mandatory by its terms the time when the sentence will begin.

"(4) It is the only offense for which it is provided that the judgment must be executed at the locus of the crime.

"Being statutory even though it is given strict construction, it certainly would fall within the doctrine laid down by Bishop (Statutory Crimes) 3rd Ed. Sec. 218, as follows:

" 'If , in a criminal case requiring the strict construction of a statute, the Court entertains a reasonable doubt of its meaning, this doubt will prevail in favor of the accused.'

"For the purpose of this hearing and so far as the legal effect of this record is concerned, Raymond Greer

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has been in the custody or control of the warden of the penitentiary since the 15th day of August, 1941, notwithstanding the warden's mistake, if he made one. Under the plain, simple, every-day English language of the statute the warden had no right to discharge him from the penitentiary before his trial for this offense unless it was intended to waive his misdoings. Section 443, Tit. 21, O. S. 1941, is just as simple and just as plain as Sec. 431.

"'Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, * * * is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years, to commence from the expiration of the original term of his imprisonment.'

"Then, we have the prisoner escaping and by statute made to stay in the penitentiary from which he escaped during the period intervening from the expiration of his former term and his trial, if any intervened.

"Counsel for petitioner cites the case of Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L.R.A., N.S., 625, 139 Am. St. Rep. 967, as supporting his position. We respectfully suggest that the cases are not even akin, for no one denies that every breath that Raymond Greer has drawn since the former sentence ended has been drawn in prisons where he was confined under mandate or because of the acts of the warden of the State Penitentiary. Nowhere has there been any suspension or stay of sentence. In the Eldridge case the prisoner, in the ordinary process of law, did those things that stayed the judgment until after the day passed when it would have ended. When his appeal failed by his own negligence, he certainly was not in position to say that he had served his thirty days. Hence, Raymond Greer has more than served the time required of him by the statutes and the judgment of the court. Had his sentence been computed, as required by the plain English of the punitive statute, he would have been out about thirty days ago. Instead of that, through the laws' delays, he will be fortunate if he is discharged before the Christmas holidays.

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"Certainly no one can suggest that the petition for habeas corpus filed did not empower the judge to hear it. Your Honors have said too often in unfailing terms and in differing verbiage that the writ of habeas corpus was a writ of right. It is a shield for the lowly.

"With the assurance that the judiciary of Oklahoma were honorable men who would act upon the facts as God gave them to see it, no appeal was provided from the judgment. Out of deference to the Attorney General the judge of the court has permitted this delay so that the question might be submitted to Your Honors. The outcome is typical of what might be expected and what we are sure was sought to be avoided when no appeal was provided.

"We respectfully urge that it is not in the province of a writ of prohibition to supply appeals or to prevent a judge of any court when the case is properly before him from rendering a judgment therein.

"This case seems to be one of first impression. Neither the investigation of the writer nor the more learned investigation of the Judge toward whom the petition is directed has been able to find any case where a similar action was sought in any court. That prohibition will lie where the exercise of judicial discretion is capricious, arbitrary and beyond the judicial powers, of course is admitted. It was made for that. As in the Swindall Case, supra, jurisdiction has been lost. Anything tending to nullify, modify or effect the sentence other than to cause it to be executed was entirely without the scope of that judicial authority.

"For the reasons above given, we sincerely urge that the writ of prohibition be denied.

"All of which is respectfully submitted."

Upon the submission of the case the writ was denied. Barefoot, Presiding Judge, assigned the case to Judge Doyle to prepare written opinion of the court as required by the statute. 20 O. S. 1941 § 47.

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Mac Q. Williamson, Atty. Gen., by J. Walker Field, Asst. Atty. Gen., for petitioner.

Guy L. Andrews, of McAlester, for respondent.

PER CUJRIAM. This is an original action in this court in the name of the State of Oklahoma, against respondent, R. W. Higgins, judge of the 15th Judicial District, in which the Attorney General, as relator, asks for a permanent writ of prohibition against respondent, as district judge of Pittsburg county, prohibiting the granting of a writ of habeas corpus in cause No. 18596, entitled: "In re petition of Raymond Greer for Writ of Habeas Corpus", to be directed to Fred Hunt, warden of the State Penitentiary, and praying that said respondent be restrained from taking any further action in said habeas corpus proceeding until said petitioner has fully served the term of imprisonment for which he was sentenced on September 22, 1941, in said district court.

Writs of prohibition are not mentioned in the statutes of this state.

The authorities all agree that prohibition is a common-law writ.

It is the established rule that:

"The power is limited as it was at common law, to cases where the act sought to be prohibited is of a judicial nature, in the absence of constitutional or valid statutory provision to the contrary."

It is a remedy provided by the common law against the encroachment of jurisdiction by inferior courts, and for the purpose of keeping such courts within the bounds prescribed for them by law. The functions whose exercise may be restrained by it are judicial functions. Unlike a writ of injunction, which acts upon the parties to the suit, a writ of prohibition operates upon the court.

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The universal rule is that:

"The writ lies only as between courts which sustain to each other the relation of superior and inferior, and cannot issue from a court to prohibit another court which is in no manner subordinate or inferior to it." 23 A. & E. Ency. of Law, pp. 217, 218, and cases cited.

In Estes v. Crawford, District Judge, 62 Okla. Cr. 156, 60 P.2d 798, 799, we said:

"Writ of 'prohibition' may not issue to prevent inferior court from erroneously exercising jurisdiction, but only to prohibit proceedings as to which inferior tribunal is wholly without jurisdiction, or threatens to act in excess of jurisdiction."

Like all other prerogative writs, prohibition is to be used with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity. A court will not issue a prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases. Nor will it ordinarily be issued in a doubtful case. 22 R. C. L. pp. 4 and 5.

The writ of prohibition is that process by which an appellate court prevents an inferior court from usurping and exercising unauthorized jurisdiction. State ex rel. Attorney General v. Stanfield, Judge, 11 Okla. Cr. 147, 143 P. 519. Estes v. Crawford, supra.

Prohibition will lie only to prevent an encroachment, excess, usurpation or improper assumption of jurisdiction on the part of an inferior court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure. Ex parte Jones, 160 S. C. 63, 158 S.E. 134, 77 A.L.R. 235. And see Annotation 77 A.L.R. 245.

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Upon the question of jurisdiction, article 7, sec. 10, of the Constitution provides:

"The district courts, or any judge thereof, shall have power to issue writs of habeas corpus."

The relevant provisions of the Habeas Corpus Act are as follows:

"Writs of habeas corpus may be granted by any court of record in term time, or by a judge of any such court, either in term or vacation; and upon application the writ shall be granted without delay." Sec. 684, Sts. 1931, 12 O. S. .1941 § 1333.

"The court or judge shall thereupon proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint or for a continuance thereof, shall discharge the party." Sec. 692, Sts. 1931, 12 O. S. 1941 § 1341.

This court, in Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461, 464, said:

"In determining the construction to be given to these provisions, we are mindful that the great object and purpose of the writ of habeas corpus is the liberation of those who may be imprisoned without sufficient or probable cause. It is the most simple and speedy remedy. Habeas corpus is the great prerogative writ, and is the best protection and most efficient security of personal liberty known to the law. Its history is lost in antiquity. It was in use before, but the first royal recognition of it is found in Magna Charta. It was guaranteed to our English ancestors by the habeas corpus act of 1679, and came to us as a part of our inheritance from the mother country. It was secured to the citizen by that part of Article 1, § 9, Const. U. S., which provides: 'See. 9. The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety might require it.' And that part of Article 14 of the Amendment to the Constitution of the United

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States which provides that no person shall be deprived of life or liberty 'without due process of law.' * * *

"It is secured to the people of Oklahoma by section 10 of the Bill of Rights, which is as follows: 'Sec. 10. The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.' The great and leading intent of our Constitution in respect to the writ of habeas corpus is manifest. It is that every citizen may be protected by judicial action from unlawful imprisonment. By virtue of this broad and comprehensive provision in the Bill of Rights, and the existing statutes, it is a writ of right; and this court, the Supreme Court, the district court, and county court, and any justice or judge thereof has power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in jail who is in custody in violation of his rights under the Bill of Rights. The Constitution or the laws of the state, and the court, justice, or judge to whom the application is made, shall forthwith allow a writ of habeas corpus, unless it appears from the petition itself that the petitioner is not entitled thereto."

The Supreme Court of this state construed this provision of the Bill of Rights in the case of Wisener, Sheriff, v. Burrell, 28 Okla. 546, 118 P. 999, 1000, 34 L.R.A., N. S., 755, Ann. Cas. 1912D, 356. The court, speaking through Mr. Justice Dunn, says:

"In the discussion of the case of Ex parte Johnson, supra, Judge Doyle, of the Criminal Court of Appeals of this state, takes note of the fact that no specific provision is made in the statute for appeals in this class of cases, and concludes that, had it been intended to provide for appeals, some proper provision would have been made."

Discussing the same he used the following language:

"It is to be noted, also, that our Constitution on this subject is as broad as it may well be. Section 10 of

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article 2, commonly known as the 'Bill of Rights', provides in broad and comprehensive terms that 'the privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.' It is to be noted that the language of the Constitution is not merely that the writ of habeas corpus shall never be suspended, but it is the privilege, of the writ which is never to be suspended.

"So jealous have the people been of an opportunity being afforded every citizen for a speedy determination of the righteousness of his incarceration, that they have placed the power to adjudicate that question in every court of record and judge thereof in the state. Even the county court and its judge is vested with a limited jurisdiction to issue this writ."

This court in Ex parte Mingle, 2 Okla,. Cr. 708, 104 P. 68, held:

"That the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired by statute, and the cases within the relief afforded by the writ at common law cannot be placed beyond its reach under the constitutional guaranty." And see Ex parte Justice, 3 Okla. Cr. 111, 104 P. 933, 25 L.R.A., N.S., 483, and cases cited.

That which Blackstone said about the Constitution of his country is equally applicable to ours:

"Magna Charta only, in general terms, declared that no man should be imprisoned contrary to law; the habeas corpus act points him out effectual means, as well to release himself, though committed, even by the king in council, as to punish all those who shall thus unconstitutionally misuse him." Book Iv. 439.

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 784, we said:

"In proceedings by habeas corpus neither this court nor the Supreme Court exercises appellate jurisdiction

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when it issues this writ, and in issuing the writ and determining the questions arising under it, neither possess more power than is possessed by a district court or any judge authorized by law to issue the writ and authorized to remand or discharge the prisoner according to the circumstances of the case.

"The state by virtue of its own sovereignty, never delegated nor relinquished, has the right to inquire for itself through its courts of record into the cause of restraint of its citizens. The Constitution confers the power upon the Supreme Court and each of the Justices, and upon 'the district courts or any judge thereof,' to issue writs of habeas corpus." And see Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

Where personal liberty is concerned, the judgment and process of a court affecting it is not so conclusive but that the question of its authority to imprison the party may be reviewed on habeas corpus by a court or judge having power to award the writ. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759. And see Ex parte Myers, 12 Okla. Cr. 575, 160 P. 939.

In conclusion, we simply add that it is apparent from the record, which we have set out in full, that there is no substantial ground upon which this application for the writ is based, if the principles enumerated and applicable and the conclusions reached are correct, the petition is insufficient to state a cause of action for the issuance of a writ of prohibition as prayed therein.