(Syllabus.)
Habeas Corpus-Writ Cannot be Substituted for Appeal-Record Does not Contain Evidence to Justify Writ. The writ of habeas corpus cannot be substituted for an appeal. Where the petitioner complains of the instructions of the court, the admission of incompetent testimony, and that the judgment and sentence is contrary to the law and the evidence, and the record does not contain the evidence, the instructions of the court or the judgment and sentence, the petition will be denied.
Original proceeding on the petition of Jesse W. Mercer for a writ of habeas corpus. Denied.
Jesse W. Mercer, in pro. per.
Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
BAREFOOT, P. J. The application of petitioner for habeas corpus was submitted to this court on September 26, 1945.
In this petition it is revealed that petitioner is now confined and is serving a term in the State Penitentiary
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by reason of a judgment and sentence of the district court of Comanche county, Okla., where he was tried and convicted and sentenced to serve a term of 20 years for rape in the first degree. No appeal was filed.
Petitioner complains of the instructions of the court, the admission of incompetent and irrelevant testimony, that the verdict is contrary to the law and the evidence, and that the petitioner was denied the right of appeal.
This being a petition for habeas corpus, no part of the evidence, the instructions of the court, or even the judgment and sentence, appear as a part of the petition. It will thus be noted that this petition comes clearly within the rule so often announced by this court, that a petition for writ of habeas corpus cannot be substituted for an appeal. The reason for this rule is obvious, and needs no discussion. Ex parte Sannes, 77 Okla. Cr. 71, 138 P.2d 561; Ex parte Wright, 78 Okla. Cr. 157, 145 P.2d 772.
There is no proof to support the allegation that petitioner was denied the right to appeal his case to this court.
For the reasons stated, the petition for writ of habeas corpus is denied.
JONES, J., concurs. DOYLE, J., not participating.