Ex parte Burns

• Decision Date: 21 October 1938
• Docket Number: A-9580.
• Citation: 83 P.2d 610,65 Okla.Crim. 162
• Parties: Ex parte BURNS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

83 P.2d 610

65 Okla.Crim. 162

Ex parte BURNS.

No. A-9580.

Court of Criminal Appeals of Oklahoma

October 21, 1938

Syllabus by the Court.

1. In a petition for a writ of habeas corpus verified by the petitioner's oath, facts alleged may be taken to be true unless denied by the return, and when not denied by the return, they are considered as admitted.

2. For the reasons herein stated the writ is awarded and petitioner discharged.

Original proceeding on application of Thomas Hershal Burns, for a writ of habeas corpus, directed to Elza Evans, Sheriff of Pottawatomie County, Oklahoma.

Writ awarded and petitioner discharged.

Kenneth B. Kienzle, of Shawnee, for petitioner.

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

PER CURIAM.

This is an original petition for a writ of habeas corpus wherein the petitioner, Thomas Hershal Burns, alleges he is unlawfully imprisoned and restrained of his liberty by Elza Evans Sheriff of Pottawatomie County, Oklahoma, and the jailer of said Pottawatomie County.

That the cause of said restraint according to the best knowledge and belief of your petitioner is: That he was taken before Judge Leroy Cooper, and informed that he had convicted himself and that he was guilty of public drunkenness; that said judge thereupon sentenced him to twenty days in the county jail and to pay a fine of $25, and all cost of the prosecution in the district court of Pottawatomie County Oklahoma, in case No. 4195, in which he was tried and acquitted by a jury on a charge of drunken driving.

Petitioner further alleges that said restraint is illegal and unauthorized in that your petitioner is restrained of his liberty and unlawfully imprisoned; that the crime of drunkenness is a misdemeanor; that your petitioner was never tried in a justice of the peace court, or any court of proper jurisdiction for the crime for which he is imprisoned; that your petitioner was never allowed to plead to any regularly filed charge; that your petitioner was never allowed bail and was not allowed a jury trial; that he has been deprived of his constitutional rights; that if he had been regularly charged with the crime for which he is imprisoned he would have plead former jeopardy, and he now pleads former jeopardy, in that he was duly charged, tried and acquitted by a jury in Pottawatomie County, Oklahoma, in the District Court, in case No. 4195 on the district court docket. That the statute forbids a prosecution twice for the same offense.

Upon the filing of a sworn petition this court issued a rule to show cause on the 14th day of October, 1938, returnable on the 18th day of October, 1938, at ten o'clock A. M., in the court room of the Criminal Court of Appeals of the State of Oklahoma, Capitol Building, Oklahoma City, Oklahoma; which rule was duly served on Elza Evans, Sheriff of Pottawatomie County, Oklahoma.

At ten o'clock A. M., on the 18th day of October, 1938, the day the rule was made returnable, the petitioner, together with his counsel, Kenneth B. Kienzle, Attorney at Law, Shawnee Oklahoma, appeared, and the...