Collins v. Page

MEMORANDUM OPINION

BUSSEY, Judge.

This is an original proceeding in which the petitioner seeks his release from confinement in the State Penitentiary at Mc-Alester, Oklahoma, where he is currently incarcerated by virtue of a judgment and sentence rendered against him by the District Court of Canadian County, and an appeal taken therefrom wherein this Court affirmed the conviction. See Collins v. State, Okl.Cr., 407 P.2d 609. Thereafter, petitioner filed an application for habeas corpus and the same was denied. See Collins v. Page, Okl.Cr., 414 P.2d 716. Petitioner now seeks his release from confinement asserting that the trial court improperly instructed the jury.

The instruction which petitioner now seeks to question was not objected to, nor assigned as error in the original appeal to this Court, or in the subsequent application for habeas corpus, and is not properly before us at this time, for only those errors committed during the trial to which exceptions are duly taken, preserved in the Motion for New Trial, and presented to this Court on appeal, are reviewable on appeal. Since the instruction of which petitioner now complains is not properly presented on appeal, it cannot now be raised. We have repeatedly held that habeas corpus is not a substitute for appeal and where the trial court has jurisdiction of the subject matter, person, and authority under law to pronounce the judgment and sentence imposed, habeas corpus will not issue. The alleged error of which petitioner now complains was not sufficient to divest the trial court of jurisdiction and the writ prayed for is accordingly denied. Writ denied.

NIX, P. J., and BRETT, J., concur.