Ex parte Wills

• Decision Date: 05 June 1915
• Docket Number: A-1835.
• Parties: EX PARTE WILLS.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

148 P. 1069

12 Okla.Crim. 596, 1915 OK CR 237

EX PARTE WILLS.

No. A-1835.

Court of Criminal Appeals of Oklahoma

June 5, 1915

Syllabus by the Court.

Where the facts stated in the petition for a writ of habeas corpus if established, will not warrant the discharge of the petitioner, the writ will be denied.

The offense set forth in the information is the one which fixes the jurisdiction of the court, and the court has jurisdiction over any included offense. It is the court's duty to submit an included offense when any phase of the testimony warrants, and especially so upon request of counsel.

Application of George Wills for writ of habeas corpus. Writ denied.

ARMSTRONG J.

This was an application to this court for a writ of habeas corpus which, omitting title and verification, is as follows:

"Your petitioner, George Wills, states to the honorable court and represents that he is restrained of his liberty and is unlawfully imprisoned at Perry, Noble county, state of Oklahoma, by one John L. McGehee. The cause of said restraint is that your petitioner was tried in the district court of Noble county, state of Oklahoma, for a felony on an information, a true copy of which is attached hereto and made a part hereof and marked 'Exhibit A,' and the jury before whom said cause was tried returned their verdict of guilty of an assault, a true copy of said verdict is attached hereto and made a part hereof and marked 'Exhibit B,' and that on the ______ day of September the district court rendered its judgment upon said verdict sentencing your petitioner to serve 30 days in the county jail of Noble county, state of Oklahoma, and to pay a fine of $50, a copy of which is hereto attached, marked 'Exhibit C.' But your petitioner alleges that said restraint is illegal and unauthorized, because said court has no jurisdiction to try misdemeanor cases, and that the act under which your petitioner was convicted has been repealed by implication by the Constitution of the state of Oklahoma, art. 7, § 12 wherein exclusive jurisdiction, in misdemeanor cases, is conferred upon county courts, and the section of the statute under which your petitioner was charged and found guilty provides for the trial and punishment of misdemeanors as well as felonies, and the same is therefore repugnant to the said Constitution, and is void; said section being section 2337 of Snyder's Statute. Wherefore your petitioner prays your honorable court to grant a writ of habeas corpus, and that he be discharged without delay from such unlawful imprisonment."

Alleging time and venue, the information charges:

"Did then and there knowingly, willfully, unlawfully and feloniously, with the felonious intent of him (the said George Wills) to then and there do bodily harm, and without

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