Ex parte Story

Ex parte Story
1947 OK CR 23
178 P.2d 112
83 Okl.Cr. 426
Decided: 03/05/1947
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Habeas Corpus-Mandamus-Writ not Substituted for Appeal. The writ of habeas corpus or mandamus may not be substituted for an appeal.

2. Same-Same Questions Decided on Appeal not Raised by Habeas Corpus or Mandamus. Where a case has been appealed to the Criminal Court of Appeals and the same decided, petitioner will not be permitted to have reviewed by habeas corpus or mandamus the same questions raised by the appeal.

Proceeding in the matter of the application of John O. Story for a writ of mandamus or habeas corpus. Petition denied.

Page 427

John O. Story, of McAlester, petitioner in pro. per.

Mac Q. Williamson, Atty. Gen., for respondent.

BAREFOOT, P. J. Petitioner, John O. Story, was charged with the crime of murder in Bryan county, Okla. He was tried and convicted, and sentenced to serve a term of life imprisonment in the State Penitentiary at McAlester, where he is now confined. He was charged with killing his wife by setting fire to a certain outhouse located back of his residence, and burning her to death. He appealed to this court, and the judgment and sentence of the district court of Bryan county was affirmed. John O. Story v. State, 73 Okla. Cr. 273, 120 P.2d 387.

Petitioner has heretofore filed a petition for writ of habeas corpus (Ex parte John O. Story, 75 Okla. Cr. 367, 131 P.2d 773) ; and a petition for writ of mandamus (Re Application of John O. Story, 80 Okla. Cr. 11, 156 P.2d 154). We have in each instance permitted the filing of the petitions, and have given them due consideration, and in each instance, the petition has been denied for the reason that an attempt was being made to have the same issue reviewed which was raised on appeal. The cases above cited give the reasons for their denial, and it is unnecessary to here review them.

The petition now filed presents the same issue. Many affidavits and statements have been filed with the clerk of this court, and we have heretofore directed that these papers be filed with the Pardon and Parole Board of this state, and this has been done. Petitioner's case has been reviewed by that Board. Only the Pardon and Parole Board can give any relief to petitioner.