This is a petition for writ of habeas corpus for the discharge of H.P. Browning 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 superior court of Custer county, Thomas A. Edwards, judge, on a charge of having in his possession a distillery, and rendered on the 4th day of June, 1923, wherein he was sentenced to be confined in the penitentiary at McAlester for the term of two years and to pay a fine of $1,000; and that said restraint is illegal and unauthorized because the 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 in Ex parte Smith,24 Okla. Crim. 415, 218 P. 708. The Attorney General concedes that the writ should issue and the petitioner be discharged.
In the case of Ex parte Smith, supra, 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 he is entitled to a discharge from the imprisonment from 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, H.P. Browning.
MATSON, P.J., and BESSEY, J., concur. *Page 15