Opinion
No. A-9913.
January 15, 1941.
(Syllabus.)
1. Habeas Corpus — Case Dismissed Where Applicant for Writ of Habeas Corpus Accepts Clemency From Pardoning Power. When the pardoning power extends clemency and the same is accepted pending the determination of an application for a writ of habeas corpus to be directed to the warden of the State Penitentiary, the case will be dismissed.
2. Same. Where a parole is granted and accepted and brought to the attention of this court pending the determination of an application for writ of habeas corpus, the case will be dismissed.
Proceeding on the relation of Robert Cindle for a writ of habeas corpus to be directed to Jess F. Dunn, Warden of the State Penitentiary. Application dismissed.
W. S. Agent, of Sallisaw, for petitioner.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
Upon petition filed in behalf of Robert Cindle for writ of habeas corpus, the writ issued, directed to Jess F. Dunn, warden of the State Penitentiary, returnable on the 15th day of November, 1940, at which time a hearing was had and the cause submitted. Counsel for petitioner was given thirty days in which to file a brief in support of his application.
It appears from the application and the answer thereto that an information was filed in the district court of Okmulgee county on May 14, 1935. Petitioner was taken before the court where he was then and there duly arraigned upon the information charging the crime of robbery with firearms. He thereupon entered a plea of guilty to the information and was by the court sentenced to be confined to the State Reformatory at Granite, Okla., to serve a term of 25 years, for the crime charged in the information, and was received at said state prison on May 16, 1935, and was transferred and received by the said Oklahoma State Prison at McAlester on April 26, 1936.
It has now been called to the attention of the court that petitioner on December 16, 1940, was granted a parole by the Governor of the state, which has been duly accepted by him.
It is our opinion that when the pardoning power extends clemency and the same is accepted, pending the determination of an application for a writ of habeas corpus, to be directed to the warden of the State Penitentiary, that petitioner by accepting the same has thereby abandoned his application for a writ of habeas corpus and waives the right to have it determined, and where a parole is granted and accepted by the petitioner, pending the determination of his application, the cause will be dismissed.
It is therefore adjudged and ordered that petitioner's application for a writ of habeas corpus be, and the same is, hereby dismissed.