Ex Parte Sneed
- Reporters:
- , , ,
- Before:
- Doyle
This is а petition for writ of habeas corpus filed on behalf of T. S. Sneed, confined in the county jail of Seminole сounty by J. A. Doyle, sheriff, under a commitment, which, omitting formal parts, is as follows:
“Whereas, on the 3‘0th day of July, 1927, in the county cоurt in and for the county and state aforesaid, the abоve-named defendant, T. S. Sneed, was found guilty of crime of unlawful possession of intoxicating liquor and by said court adjudgеd to pay a fine of $100, costs of prosecution $-, сounty attorney’s fee $ — , and a jail sentence of 60 dаys and accruing costs $-.
“Now, therefore, you are commanded to take the defendant into your custody аnd confine him in the jail of said county in default of said fine and costs and until said jail sentence is satisfied.
“In testimony wherеof, witness my hand at Wewoka, Okla., this the 30th day of July, 1927. J. E. Simpson, County Judge, Seminole County, Oklahoma. [Seal.]”
The record of the conviction and sentence, a duly certified cоpy of which is annexed to the petition, shows the follоwing facts: The information filed August 1st charged that Tom Sneed, in Sеminole county, on or about the 30th day of July, 1927, “did commit the сrime of unlawful possession of Choctaw beer in mannеr and form as follows, that is to say, that on the date and day aforesaid the said Tom Sneed, then and there being, did then and there unlawfully have in his possession about 25 gallons оf Choctaw beer.”
It is also shown that on a habeas сorpus proceeding the county judge of said county denied the writ, and that the district judge of said county is absent frоm the state.
*83 It is also stipulated that the information filed thе third day after the commitment issued is the only information on file at this time.
Thus it appears, as alleged in the petitiоn that there was no information on file when the commitment herein issued, and petitioner by virtue thereof committеd to the county jail, and this is violation of the constitutionаl provision which prescribes:
“No person shall be рrosecuted criminally in courts of record for felоny or misdemeanor otherwise than by presentment or indiсtment or by information.” Const, art. 2, § 17.
The averment that the information is insufficient to charge the offense of illegal рossession of intoxicating liquor is well taken.
The informatiоn does not allege that the said Choctaw beer was an intoxicating liquor, or that it contained more than one-half of 1 per cent, of alcohol measurеd by volume.
It follows from what has been said that the petitiоner is restrained of his liberty without due process of law, because the court sentencing him to such imprisonment without an information was without jurisdiction to pronounce the judgment or issue a commitment thereon.
The rule to show cause herein is made returnable to this court, provided that petitioner be released on bail in the sum of $500, which bail was given).
For the reason stated, it is the opinion of this court that petitioner is entitled to be discharged. It is so ordered, and his bond is exonerated.
EDWARDS and DAVENPORT, JJ., concur.