This was a petition for a writ of habeas corpus to the warden of the state penitentiary at McAlester, wherein Sam Hayes alleges that he is unlawfully restrained and imprisoned in the penitentiary at McAlester upon a purported penitentiary mittimus issued out of the District Court in and for Haskell county upon a judgment and sentence rendered by said court upon the verdict of a jury finding the petitioner guilty of the crime of larceny of live stock; that T. M. Crews, the justice of the peace before whom his preliminary examination was had was ineligible to the office of justice of the peace, and the preliminary examination of this petitioner was a nullity and was without authority of law aná void, and this petitioner at no time waived his right to have an examining trial.

*324 The attorney general interposed a demurrer to the petition .for the writ. On the case as presented by the record it is the judgment of this court that the demurrer is well taken. The writ of habeas corpus is therefore refused.