346 P.2d 733 | Okla. Crim. App. | 1959
This is an original proceeding in habeas corpus filed by Cecil Francis Massey to obtain his release from the state penitentiary.
The record before this court shows that petitioner was convicted of the crime of Manslaughter, 1st degree, on the 5th day of September, 1953, in the county of Tulsa, State of Oklahoma. He appealed from the judgment and sentence and said case was affirmed by this court on January 12, 1955. Thereafter, on the 7th day of May, 1959, petitioner filed in this court his application for a writ of habeas corpus. Petitioner advances three reasons why he should be released from confinement and a discharge from prison. First, that the conviction for which he is imprisoned was obtained by perjured testimony used by the state during the course of his trial. That the state failed to present two witnesses who were present at the place where the crime was committed, and that the prosecution presented a malicious prosecution activated by a hostile and vindictive motive and did not confine himself to the facts as shown by the evidence, and that the sentence imposed was excessive. Under previous decisions of this court none of these contentions constitute the basis for release by habeas corpus. They are, however, matters that are to be reviewed upon direct appeal.
The records of this court reveal that petitioner appealed his case to this court and as reported in Massey v. State, 279 P.2d 383, a review of that cáse shows that these same matters with the exception of the contention of perjured testimony, were considered by this court upon direct appeal and a decision rendered therein adverse to the petitioner.
This court has held in the case of In re Vassar, Okl.Cr., 338 P.2d 359.
“The Court of Criminal Appeals will not issue writ of habeas corpus where accused has appealed his judgment of conviction, the judgment is affirmed and question raised in habeas corpus proceedings were in existence and known to petitioner at time of appeal and were matters which properly should have been presented by appeal.”
Also see In re Yarbrough, Okl.Cr., 295 P.2d 826.
The writ of habeas corpus is therefore denied.
