(Syllabus.)

Habeas Corpus - Examining Magistrate's Order of Commitment Void Where not Sustained by Competent 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.

Original habeas corpus proceeding by Guy Foster against the Sheriff of Oklahoma County. Writ awarded.

Frank Burkett, for petitioner.

J. Berry King, Atty. Gen., and Draper Grigsby, Asst. Co. Atty., for respondent.

PER CURIAM. This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained

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by the sheriff of Oklahoma county by reason of a charge of adultery before a committing magistrate and a preliminary hearing thereon, upon which petitioner was held for the action of the district court. That there is no legal or competent evidence tending to prove the commission of an offense by petitioner and that he is unlawfully restrained.

Upon an examination of the transcript of the testimony we are satisfied the contention of petitioner is correct; that there is no legal or competent evidence sufficient to show probable cause.

The writ is awarded, and if petitioner is not held on any other charge, his release is ordered.