Opinion
No. A-829.
Opinion Filed March 7, 1911.
Original Proceeding by Writ of Habeas Corpus.
Application of Geo. Balwin for writ of habeas corpus. Writ dismissed.
Charles Swindell and C.B. Leedy, for petitioner.
Burford Burford and W.H. Springfield, for respondent.
This is an original habeas corpus action filed by petitioner. Geo. Baldwin, seeking to be released under a commitment issued by the town justice of the peace of Arnett, Ellis county, Oklahoma. The return of the officer shows that on the 9th day of July, 1910, A.J. Miller, town marshal of said town, incarcerated the said Geo. Baldwin in the town jail of Arnett, and there kept the said Geo. Baldwin for the space of about three hours, when, owing to the heat and uncomfortableness of the said jail, he allowed the said George Baldwin his freedom from said jail and allowed him to go to his home and place of business. That since his release on the 9th day of July, the said Geo. Baldwin has been constructively in his care. This court has repeatedly held that a writ of habeas corpus will not lie to release a person who is not in actual custody. The petitioner in this case not having been in actual custody at the time the writ herein was granted, as shown by the return, and in no way denied, the writ is dismissed. Ex parte Messall, 2 Okla. Cr. 687.