(Syllabus.) Habeas Corpus — Conviction under Unconstitutional Law. A person who has been convicted of violating an unconstitutional law will be discharged on habeas corpus.
DOYLE, J.
This is a petition for writ of habeas corpus for the discharge of V.W. Spence, 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 by the district court of Logan county, C.C. Smith, Judge, on a charge that he did have in his possession mash fit for distillation, for the purpose of using said mash for the distillation of spirituous liquors; which judgment was rendered on the 10th day of September, 1923, wherein he was sentenced to be confined in the penitentiary at McAlester for a term of one year and to pay a fine of $100; and alleging that said restraint is unauthorized because the act approved February 5, 1923, chapter 1, Session Laws 1923, making it a felony to possess mash, etc., fit for distillation, is unconstitutional and void as determined by the decision of this court in the case of In re D.E. Smith, 24 Okla. Cr. 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 imprisoned and restrained of his liberty by the respondent, and that he is entitled to be discharged from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.
MATSON, P.J., and BESSEY, J., concur.