Ex Parte Miles , 56 Okla. Crim. 69 ( 1934 )

EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is illegally restrained of his liberty in the state penitentiary; that he ivas sentenced by the district court of Tulsa county to serve a term of one year and to pay cost in the sum of |85.60; that his confinement in the penitentiary began on the 13th day of November, 1933.

The contention appears to be that the court was without jurisdiction to sentence petitioner because of irregularity of the verdict and on account of the failure of the trial judge to require the jury to assess the punishment; that the verdict does not conform to- the law, in that it does not assess a fine in addition to imprisonment. Attached to the petition is a certified copy of the verdict, the judgment and sentence, and the court’s instruction. From this we conclude that the proceedings were irregular, but we do not find the court was without or lost jurisdiction. If this were before the court on appeal, it is likely reversible error would appear. Habeas corpus cannot be resorted to in place of an appeal. The petitioner will be entitled to his discharge when he shall have served the term of one year and discharged the cost assessed. Time may be shortened by deduction for good time, if such shall be allowable.

The writ is denied.