Gale Kenneth NIPP, Petitioner, v. The STATE of Oklahoma and Ray H. Page, Warden, Oklahoma State Penitentiary, Respondents, 393 P.2d 886

BUSSEY, Judge. This is an original petition for Habeas Corpus, filed by Gale Kenneth Nipp, an inmate in the State Penitentiary at McAlester, Oklahoma, wherein he seeks his release from confinement. Said petition alleges that petitioner is restrained of his liberty under authority and by virtue of Judgment and Sentence rendered against him in Cases No. 10343 and No. 10344, in the District Court •of Muskogee County, Oklahoma, wherein he was prosecuted for the crime of Burglary in the Second Degree, found guilty by a Jury and sentenced to serve Five (

S) Years in the State Penitentiary in each case. Examination of the record discloses that two appeals were duly perfected to this Court, Case No. 13-158, reported at 374 P.2d 624, and Case No. 13-159, reported at 377 P. 2d 225, and judgment was affirmed in each case. Petitioner now contends that remarks made in the presence of Jurors, by the Presiding Judge, were prejudicial, but were not preserved in the record.

This Court has repeatedly held that: “The Court [of Criminal Appeals] will not issue writ of habeas corpus where accused has appealed his judgment of conviction, the judgment is affirmed and questions raised in habeas corpus proceedings were in existence and known to petitioner at time of appeal and were matters which properly should have been presented by appeal.” In re York, Okl.Cr., 283 P.2d 567. See also, Ex parte Yarborough, Okl.Cr., 295 P.2d 826; Johnson v. State, Okl.Cr., 386 P.2d 331; In re Simpson, Okl.Cr., 353 P.2d 28.

Consistent with the prior decisions herein referred to, we hold that the relief prayed for should be and the same is hereby Denied. Writ denied. JOHNSON, P. J., and NIX, J., concur.