(Syllabus.)

Habeas Corpus--Writ Denied Where Petitioner at Time of Filing Petition not Confined in Penitentiary. Where petitioner is not actually confined in State Penitentiary at time of filing his petition for writ of habeas corpus, seeking his release therefrom, but is an escapee, petition will be dismissed.

Original proceeding in the matter of the application of Bill Kirk for a writ of habeas corpus for release from the Oklahoma State Penitentiary. Petition dismissed.

Bill Kirk, pro se.

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

BAREFOOT, P. J. Unverified petition for writ of habeas corpus was filed in this court by Bill Kirk on April 16, 1948, seeking his release from the State Penitentiary at McAlester, on the grounds that his confinement therein was illegal and unlawful.

An investigation of the records reveals that this petitioner was convicted of the crime of robbery with firearms in the district court of Tulsa county on or about October 10, 1931, and sentenced to serve 35 years in the State Penitentiary. That he escaped from the penitentiary on or about May 2, 1945, and subsequent thereto

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was sentenced in the State of Missouri to the penitentiary of that state, and on the date of filing the petition herein was confined in the Missouri State Penitentiary, at Jefferson City.

For the reason that the petitioner was not actually confined in the State Penitentiary at McAlester, Okla., on the date of the filing of his petition herein, the petition for writ of habeas corpus is dismissed.

JONES and BRETT, JJ., concur.