[1] This is an application for writ of mandamus by Lorimer R. Herrick Jr., an inmate of the Oklahoma State Penitentiary, requesting that he be accorded a preliminary hearing in case no. A-13060, in the County Court of Tillman County before the honorable Haskell Hollimen, or that the charges there pending against him be dismissed.
[2] The petitioner alleges that he has been within the jurisdiction of the County Court of Tillman County for a period of eight months and has not been accorded a preliminary hearing. The petitioner's assertion that he has been within the jurisdiction of said county court is not born out by the record which reveals that on August 5, 1960, petitioner was taken into custody by the authorities in Jay, Oklahoma, and transported to Lawton, Oklahoma, where he was charged with the offense of assisting a jail break and burglary in the second degree and that he remained there in custody until he was confined to the state penitentiary after having entered a plea of guilty to the charges above referred to.
[3] Under such conditions there is no duty upon the committing magistrate before whom preliminary complaints are pending, for jurisdiction of the person is lacking. Inverarity v. Zumwalt,97 Okla. Cr. 294, 262 P.2d 725; Jennings v. Raines, Okla. Cr. 353 P.2d 147.
[4] Either the state or the accused may proceed in the district court of the county where charges were filed by way of habeas corpus ad prosequendum, making the magistrate and person having custody of the accused person parties defendant, and should such efforts fail, original proceedings may be filed in the Court of Criminal Appeals.
[5] It further appears from the response filed by the honorable Amos Stovall, county attorney in and for Tillman County, and the exhibits thereto attached, that he has secured a writ of habeas corpus ad prosequendum in the district court of Tillman County, returned the petitioner to said county for a preliminary hearing and has announced his intention to try said petitioner at the next regular docket of the district court of Tillman County. The question is therefore moot and the same is accordingly dismissed.
[6] NIX, P.J., and BRETT, J., concur. *Page 345