
    In re GEO. W. SMITH.
    No. A-837.
    Opinion Filed November 9, 1911.
    Application for writ of habeas corpus.
    Writ denied.
    Fred S. Caldwell, for petitioner.
   PER CURIAM.

The petitioner, Geo. W. Smith, on July 19, 1910, filed in this court a petition signed and verified by his oath, wherein he avers that he is illegally restrained of his liberty by Harvey D. Garrison, sheriff of Oklahoma county, and alleging the facts constituting said illegal restraint. For the reasons therein stated petitioner prays that a writ of habeas corpus be allowed and that he be discharged. Upon filing the application the write issued returnable August 4th, 1910, and respondent was directed to release petitioner pending the hearing and determination of his application upon the giving of a bond fixed in the sum of two hundred and fifty dollars, to be filed with and approved by the clerk of the superior court of Oklahoma county. The return of the respondent states that:

“The petitioner, George W. Smith, has not been, nor is he now, in the custody of, nor has he been held or restrained of his liberty in any manner by your respondent or any of his deputies.”

And further states:

“The said petitioner appeared at the county jail of Oklahoma county on the 19th day of July, 1910, with the order of this court to have the body of said Smith before it on August 4th, 1910, and releasing said Smith from your respondent’s custody upon the execution of a bond in the sum of two hundred and fifty dollars, and at the same time producing said bond approved by the clerk of the superior court of Oklahoma county as required by the order of the court.”

It thus appears that at the time the petitioner applied for the writ he was not in the custody of the respondent. This court has uniformly held that a writ of habeas corpus will not lie to release a person who is not in actual custody. Ex parte Messall, 2 Okla. Cr. 687; 103 Pac. 1040; Ex parte Baldwin infra, 115 Pac. 473. The petitioner not having been in actual custody at the time the writ herein issued as shown by the return of the respondent the writ is discharged and the proceeding dismissed.  