This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the warden of the state penitentiary, at McAlester; that he was charged with murder in the district court of Marshall county; that he entered a plea of not guilty, but later withdrew this plea and entered a plea of guilty to manslaughter in the first degree, and was sentenced to serve a term of 100 years in the state penitentiary. He alleges that he had no preliminary on the charge of manslaughter, but does not allege that he did not have a preliminary on the charge of murder, or that he did not waive a preliminary, nor that he made any motions to quash because he had not had a preliminary. The burden is on him. Robbins v. State, 12 Okla. Cr. 294, 155 P. 491.
He further alleges the punishment assessed is excessive. Section 2227, Okla. Stat. 1931, fixes the punishment *Page 207 for manslaughter in the first degree at imprisonment in the state penitentiary for any term not less than four years. Defendant is attempting to use the proceedings by habeas corpus in place of an appeal. This cannot be done.
The writ is denied.
DAVENPORT and CHAPPELL, JJ., concur.