Ex Parte Boyd

218 P. 715 | Okla. Crim. App. | 1923

This is a petition for writ of habeas corpus for the discharge of Louis Boyd from the penitentiary at McAlester, wherein it is alleged that he is unlawfully restrained of his liberty by J.H. Townsend, warden; that the cause of said restraint is a commitment issued upon a judgment of conviction pronounced by the district court of Logan county, on a charge of having in his possession mash, and rendered on the 22d day of September, 1923; and alleging that said restraint is illegal and unauthorized because act approved February 5, 1923 (chapter 1, Session Laws 1923), making it a felony to possess mash, wort, or wash fit for distillation, is unconstitutional and void, as determined and decided by this court in the case of Ex parte D.E. Smith, 24 Okla. Cr. 415, 218 P. 708, which opinion was handed down on the same day as the judgment herein complained of was rendered.

The Attorney General concedes that the writ should issue and the petitioner be discharged.

In the case of Ex parte Smith, 24 Okla. Cr. 415,218 P. 708, the statute upon which this prosecution is based was held unconstitutional and void. It follows that petitioner is unlawfully restrained of his liberty by the respondent, and that the is entitled to a discharge from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.

The clerk of this court will forthwith forward to the warden of the penitentiary at McAlester a duly certified copy of this opinion, and upon receipt of the same said warden is directed to discharge said petitioner, Louis Boyd.

MATSON, P.J., and BESSEY, J., concur.