Ex parte Hummingbird

Ex parte Hummingbird
1943 OK CR 120
143 P.2d 166
78 Okl.Cr. 33
Decided: 11/10/1943
Oklahoma Court of Criminal Appeals

(Syllabus.)

Habeas Corpus-Writ not to Be Used as Substitute for Appeal.

Habeas corpus proceeding by Homer Hummingbird to review a judgment of conviction. Writ denied.

Homer Hummingbird, in pro. per.

Randell S. Cobb, Atty. Gen., for respondent.

JONES, P. J. This is an original proceeding flied by the petitioner, Homer Hummingbird, an inmate of the

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State Penitentiary, in which he seeks to have this court review his conviction and "either grant a new trial or cut the sentence."

No copy of the judgment and sentence is attached to the petition. However, it is alleged that the petitioner entered a plea of guilty to the crime of rape, committed upon his stepdaughter. The number of years to which the defendant was sentenced upon his plea of guilty is not set forth. The petition sets forth a purported account of all the facts surrounding the alleged rape with the allegation that the accused was framed by his stepdaughters and his wife. There are other allegations in the petition but there is nothing set forth which, if true, would show that the judgment and sentence pronounced against the defendant was void for lack of jurisdiction on the part of the trial court to pronounce such judgment.

It is well settled that the writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court attacked is clearly void. Ex parte Tollison, 73 Okla. Cr. 38, 117 P.2d 549; Ex parte Banning, 73 Okla. Cr. 398, 121 P.2d 619; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P.2d 550.

For the reasons hereinabove stated the petition is denied.