
    HORTON v. WATERS, Jr., Warden Oklahoma State Penitentiary.
    No. A-11646.
    Feb. 6, 1952.
    (240 P. 2d 1129.)
    Jack Horton, pro se.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Jack Horton, for the purpose of securing his release from imprisonment in the state penitentiary. The case is presented upon a demurrer to the petition filed by the Attorney General on behalf of the warden.

The demurrer is sustained for these reasons: First, the petition is unverified. Arles v. Burford, 95 Okla. Cr. 51, 239 P. 2d 526, handed down by Oklahoma Criminal Court of Appeals December 26, 1951. Second, the petition alleges that petitioner was arrested on May 22, 1950, on a charge of forgery, allegedly committed on May 18, 1950; that on May 29, 1950, he was bound over to the district court for trial on said charge of forgery in the second degree; that on September 27, 1950, petitioner entered a plea of guilty in the district court of Comanche county in case No. 3733 to the charge of forgery in the second degree, and was sentenced to serve four years imprisonment in the penitentiary, but the said, sentence was suspended, and the petitioner released from custody; that on September 30, 1950, petitioner was rearrested, the suspended sentence was revoked and petitioner was committed to the state penitentiary where he is now serving his sentence.

Petitioner contended in his petition that he was not guilty of the offense, but that said forgery was in fact committed by one Johnny Brinkman.

Habeas Corpus may not be substituted for an appeal. Ex parte Small, 92 Okla. Cr. 101, 221 P. 2d 669. Neither may it be used to determine the factual question of guilt or innocence of inmate of penitentiary. Ex parte Merritt, 87 Okla. Cr. 385, 198 P. 2d 231.

Writ of habeas corpus is denied.

BRETT, P. J., concurs.  