This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully re *20 strained by the sheriff of Oklahoma county by reason of a charge of adultery before a committing magistrate and a preliminary hearing thereon, upon which petitioner was held for the action of the district court. That there is no legal or competent evidence tending to prove the commission of an offense by petitioner and that he is unlawfully restrained.

Upon an examination of the transcript of the testimony we are satisfied the contention of petitioner is correct; that there is no legal or competent evidence sufficient to show probable cause.

The writ is awarded, and if petitioner is not held on any other charge, his release is ordered.