(Syllabus.)

Habeas Corpus-Application for Writ not Considered on Ground Existing When Former Application Made. Where Criminal Court of Appeals has denied application for writ of habeas corpus, it will riot ordinarily entertain subsequent application for such writ on same grounds and facts, or any other grounds or facts existing when first application was made, whether presented then or not.

Original habeas corpus proceeding by Morris Brewer to secure release from state penitentiary. Writ denied.

Morris Brewer, in pro. per.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

BAREFOOT, P. J. Petitioner herein, Morris Brewer, is confined in the state penitentiary at McAlester in pursuance of a judgment and sentence entered in the district court of Washita county. This petition was filed with the clerk of this court on the 28th day of September, 1942.

An examination of the record reveals that this same petitioner filed a petition for habeas corpus in this court on May 5, 1942. On September 16, 1942, an opinion by Judge Doyle was entered denying the writ. 75 Okla. Cr. 150, 129 P.2d 199. The filing of this petition on the 28th day of September, 1942, was made without our attention being called to the fact of the filing of the prior petition. Otherwise the filing of the same would have been denied.

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The rule of this court is that where a writ of habeas corpus has been denied, this court will not ordinarily entertain a subsequent application for a writ based upon the same grounds and the same facts, or any other grounds or facts existing when the first application was made, whether presented then or not. Ex parte Berrie, 75 Okla. Cr. 115, 129 P.2d 88, and Ex parte Arthur, 75 Okla. Cr. 315, 131 P.2d 135. The demurrer of the Attorney General on behalf of the warden of the penitentiary is, therefore, sustained.

DOYLE and JONES, JJ., concur.