The petitioners in the above-entitled causes filed petitions for writs of habeas corpus in this court on the 16th day of September, 1940, alleging they were unlawfully restrained of their liberty by George Goff, the sheriff of Oklahoma county, Okla. It was alleged in said petitions that defendants were being illegally restrained of their liberty by reason of (a) excessive bail, (b) by reason of the filing of an information against each of said defendants in the district court of Oklahoma county, which said informations were based upon a statute that was unconstitutional, (c) by reason of the fact that evidence produced before the examining magistrate was insufficient upon which to base an information in the district court, and (d) that said informations were insufficient for the reason that they were filed against petitioners by reason of certain illegal searches and seizures made by the officers of Oklahoma county, and for this reason were null and void.
By agreement of the respective parties, a hearing of said petitions was set in the courtroom of this court for September 17, 1940, at 10 o'clock a. m., at which time all of said parties were present in person and by their attorneys. *Page 202 No response having been filed in this case, it was agreed in open court that the petitions should be considered as if a general demurrer had been filed thereto by respondent, and the matter was heard as if such demurrer had been filed. The court examined the petitions and announced from the bench that the petitions revealed on their face that informations had been filed in the district court of Oklahoma county, charging each of said petitioners with the commission of a felony, and that inasmuch as it had been the uniform holding of this court that where an information had been filed in a court of competent jurisdiction alleging the commission of an offense as defined by the statutes of Oklahoma, this court will not interfere with the due administration of justice before such tribunal, but that all matters properly presentable before such court, in case of a conviction, if properly preserved, might be presented on appeal to this court.
At the suggestion of the court, it was agreed that bail be reduced in the cases pending against petitioners in the district court of Oklahoma county, and that said cases would be tried in the district court of that county, and that in the event of conviction, the questions raised in the petition would be presented on appeal. With this agreement entered in open court, an order was made denying the petitions.
This rule was early announced by this court in the case of Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142, where it was said:
"Section 4893, Rev. Laws [1910, section 693, Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 12, section 1342] provides:
" 'No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * 4th. Upon *Page 203 a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.'
"In this case it appears from the averments of the petition that the petitioner is being held by virtue of an information preferred by the county attorney in a court of competent jurisdiction, to wit, the district court of Rogers county, and under the foregoing provision of the statute the writ of habeas corpus cannot be resorted to for the purpose of determining the sufficiency of the evidence adduced upon the preliminary examination to show probable cause. The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue it presents is whether or not the prisoner is restrained of his liberty by due process of law. The due and proper administration of public justice requires that whenever an information is filed in a court of competent jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal, and the writ of habeas corpus cannot be resorted to on the plea that the evidence adduced upon his preliminary examination was insufficient to show that a felony had been committed, or probable cause for believing the defendant guilty thereof. The defendant has a right to raise this question in the court where the information is pending, by a plea in abatement; or by motion to quash, or motion to set aside the information."
This rule has been steadfastly followed by this court. Ex parte Johnson, 29 Okla. Cr. 374, 233 P. 1092; In re Hill,12 Okla. Cr. 335, 156 P. 686; Ex parte Woods, 7 Okla. Cr. 645,125 P. 440; Ex parte King, 41 Okla. Cr. 241, 272 P. 389; Ex parte Wheeler, 65 Okla. Cr. 290, 85 P.2d 434; Ex parte Keel,62 Okla. Cr. 277, 71 P.2d 313; Ex parte Green, 69 Okla. Cr. 218,101 P.2d 641; Ex parte Robnett, 69 Okla. Cr. 235, 101 P.2d 645.
The petitions in these cases set up the plea that Oklahoma Statutes 1931, sections 2571, 2572, and 2573, Oklahoma *Page 204 Statutes Annotated, title 21, sections 1261, 1262, and 1263, being the statutes upon which the informations against petitioners are based, are null and void for the reason that they are in contravention of the Fourteenth Amendment of the Constitution of the United States, and of section 57, article 5, of the Constitution of the State of Oklahoma, Okla. St. Ann. This part of the petition might justify this court, under the law, in passing upon the constitutionality of the above statutes, but in view of the understanding and agreement at the time of the hearing of these petitions, no opinion should be expressed thereon.
Because of this agreement in open court, the question of the constitutionality of the above statutes was not presented by oral argument to this court, and no briefs have been filed by either the petitioners or the respondent, and in fairness to all parties, and in compliance with the understanding heretofore stated, we are not justified in passing upon the constitutionality of the above statutes at this time. When and if these matters are properly before this court, fully briefed, and an opportunity is given to all parties to be heard, they will then be decided in justice and fairness to all.
The petition for writ of habeas corpus in each of the above cases is denied.
JONES, J., concurs in conclusion.
Separate opinion by DOYLE, J.