Ex Parte Flowers , 11 Okla. Crim. 381 ( 1915 )

ARMSTRONG, J.

The petitions of Walter Flowers and James Hobbs were filed in this court in October and November, 1914, seeking their release upon the writ of habeas corpus from the custody of the warden of the state penitentiary. The petitions are based primarily upon pardons issued by Lieutenant Governor J. J. McAlester in the absence of Governor Lee Cruce from the state. The questions at issue were ably argued and briefed by counsel for both petitioners and respondent. Many of the statutes involved have been repealed by the Legislature since the filing of the petitions, thereby eliminating numerous questions from these cases. The members of the court, after thorough and deliberate consideration, have been unable to agree upon many of the legal questions presented. There is no disagreement among a majority, however, upon the question of the right of petitioners to be discharged upon the ground that the said pardons are valid as between the state and the petitioners. The writer of this memorandum, however, does not concur in that conclusion.

The writs are granted, and the warden of the state penitentiary directed to discharge the petitioners from custody.

DOYFE, P. J., and FURMAN, J., concur in result.