Opinion
No. A-2584.
Opinion Filed April 5, 1916.
HABEAS CORPUS — Grounds for Relief — Sufficiency of Evidence. Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court by an examining magistrate, is void and the petitioner will be discharged on habeas corpus.
Application of John Hudleston, Newt Hudleston and George King, for writ of habeas corpus.
C.H. Ruth, for petitioners.
Robt. E. Wood, Asst. Atty. Gen., for respondent.
John Hudleston, Newt Hudleston and George King, filed in this court a duly verified petition wherein they allege that they and each of them are illegally restrained and unlawfully imprisoned by Elsworth Hume, sheriff of Garfield county.
The petition sets forth the following facts:
That the petitioners were arrested in Oklahoma county on the 20th day of September, 1915, and there confined in the county jail until the 7th day of October, 1915, at which time they were transferred to and confined in the county jail of Garfield county to answer a charge of felony as set forth in the complaint filed before J.B. Ratliffe, a justice of the peace within and for Enid city district, Garfield county. In said preliminary complaint petitioners were jointly charged with the larceny of a Ford touring car of the value of three hundred and fifty dollars, the property of one Frank Manning. That on October 29, 1915, a preliminary examination was had before the said justice of the peace and that upon said hearing no competent evidence was introduced to in any manner connect these petitioners with the commission of the offense. That the said justice disregarding the evidence in the case arbitrarily and oppressively and without probable cause ordered said petitioners committed to the county jail to answer the said charge in the District Court of Garfield county.
Attached to said petition is a duly certified transcript of the testimony taken upon said preliminary examination.
A rule to show cause issued returnable November 30th, at which time the application was submitted on the petition, transcript and answer.
The attorney general conceded that there was no legal or competent evidence introduced upon the preliminary examination which proved or tended to prove in any manner that the petitioners, Newt Hudleston and George King were in any way connected with the commission of the crime charged.
Upon a careful examination of the record and the evidence were are satisfied that there is no legal or competent evidence to sustain the order of commitment as to the petitioners Newt Hudleston and George King. On this 7th day of December, 1915, it is ordered by the court that said petitioners be discharged.
There being some evidence tending to connect the petitioner John Hudleston with the commission of the crime charged, the writ as to said petitioner will be denied.