Habeas corpus by John W. Scott for discharge from the penitentiary. Writ allowed, and petitioner discharged.

Lewis Paullin, for petitioner.

The Attorney General and N.W. Gore, Ass't. Atty. Gen., for the State.

MATSON, P.J. This is a petition for writ of habeas corpus for the discharge of John W. Scott from the penitentiary at McAlester, Okla., wherein it is alleged that he is unlawfully restrained of his liberty by J.H. Townsend, warden; that the cause of said restraint is a commitment issued upon a judgment rendered by the district court of Cimarron county, state of Oklahoma, on a charge of having

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and keeping in his possession a certain still worm. Said conviction and sentence having been passed and rendered on or about the 4th day of June, 1923, in said court, wherein he is sentenced to be confined in the penitentiary at McAlester, Okla., for the term of three years, and to pay a fine of $100, and alleging that said restraint is illegal and unauthorized, for the reason that the law under which he was convicted and is now serving a sentence, to wit, chapter 1, Session of Laws of Oklahoma 1923, making it a felony to have in one's possession a still, still worm, or mash, wort, or wash, etc., was held unconstitutional and void, as determined by this court in Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708. The Assistant Attorney General appeared in open court and conceded that the writ should issue and the petitioner be discharged. In the case of Ex parte Smith, supra, the statute upon which this prosecution was based was held unconstitutional and void.

It follows that the petitioner is illegally restrained of his liberty by the respondent, and that he is entitled to be discharged from the prison, of which he complains, and that he is therefore by the judgment of this court discharged therefrom. The clerk of this court will forward forthwith to the warden of the penitentiary at McAlester a duly certified copy of this opinion and upon receipt of the same said warden is authorized to discharge said petitioner, John W. Scott.

BESSEY and DOYLE, JJ., concur.