EX PARTE W. H. SEALE

(Syllabus.)

Habeas Corpus — Burden of Proof on Petitioner to Sustain Allegations. Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof. It is only when the record and the evidence reveals that the judgment and sentence under which petitioner is being held is void will relief be granted by habeas corpus.

BAREFOOT, P. J.

Petitioner, W. H. Seale, has filed in this court petition for writ of habeas corpus alleging that he is now confined in the State Penitentiary at McAlester by Fred Hunt, warden; that he is unlawfully restrained of his liberty by reason of a void judgment and sentence pronounced against him by Judge Hayson of Oklahoma county on or about the 5th day of October, 1915, by which he was sentenced to serve a term of 99 years in the penitentiary. Copy of the indictment and judgment and sentence are attached to the petition.

The grounds upon which petitioner relies for this writ are almost identical to the grounds set forth in the case of Ex parte Paul Nye, 75 Okla. Cr. 155, 129 P.2d 614.

Defendant was charged with the murder of J. H. Haywood McDonald in Oklahoma county on the 5th day of March, 1915. He was arrested in the State of Arizona and was brought back to this state in the month of September, 1915, and entered a plea of guilty to murder and was by the court sentenced as above set forth.

A response has been filed by the Attorney General on behalf of the Honorable Fred Hunt, warden of the penitentiary, and attached thereto is an affidavit of W. D. Witcher, a deputy sheriff, who went to the State of Arizona and brought petitioner to this state. Also attached is an affidavit of Judge John W. Hayson, in which he states:

"John W. Hayson, of lawful age, being first duly sworn, deposes and says that on the 2nd day of October, 1915, he was one of the District Judges of the 13th Judicial District of the State of Oklahoma, composed of Oklahoma and Canadian Counties, and that on said date as such Judge, he held Court at Oklahoma City, Oklahoma.

"That on said date, in cause No. 3817, State of Oklahoma v. Seale, the defendant was duly arraigned in said Court under the indictment in said cause. That the indictment was read to defendant. Whereupon this affiant, as Judge of said Court, inquired of defendant as to his true name, and the defendant stated that his name was W. H. Seale. This affiant then inquired of said Seale if he had an attorney and was informed by the said Seale that he had no attorney and did not desire an attorney. Whereupon this affiant advised the said Seale that he was entitled to counsel and entitled to time to plead to said indictment. The said W. H. Seale then informed the Court that he did not desire any further time to plead and did not desire counsel, but desired to plead to the indictment at once.

"Whereupon the Court asked the said defendant whether he desired to plead guilty or not guilty to the charge in the indictment. The defendant thereupon stated that he desired to plead guilty and to be sentenced at once. The Court thereupon pronounced judgment upon the defendant and sentenced him to life imprisonment at McAlester, Oklahoma, and directed the Court Clerk to prepare the proper judgment and sentence."

The facts set forth in the above affidavit are corroborated in the affidavit of W. D. Witcher, who was present at the time defendant received his sentence. There is no proof or evidence to contradict the statements above made. There is nothing to show that the judgment and sentence entered against petitioner is void. The affidavits reveal that he was 23 years of age at the time judgment and sentence was entered.

Upon the authority set forth in the Nye Case, supra, the petition for habeas corpus is denied.

DOYLE and JONES, JJ., concur.