37 S.W. 421 | Tex. Crim. App. | 1896
The relator in this case was heretofore convicted of the offense of aggravated assault and battery in the Criminal District Court of Harris County, and prosecuted his appeal to this court, and the judgment was affirmed. On the 28th day of May, 1896, appellant petitioned the County Judge of Waller County for a writ of habeas corpus. The petition was granted, and the writ issued. Said petition alleges: "That he was held under a commitment of capias pro fine, issued from the Criminal District Court of Harris County, on the 15th day of May, 1896, and also alleges that the proceeding in the Criminal District Court of Harris County was void because it had no jurisdiction to try the case, in that the offense was committed in Waller County, and not within four hundred yards of the boundary line of Harris County, and that he had been tried in the Justice Court, Precinct *385
No. 1, of Waller County, opon a valid complaint and affidavit, and in said Justice Court convicted for the same offense, and that by the trial in Waller County he was placed in jeopardy; and he further alleges that at the time of said alleged assault he was temporarily unconscious and delirious from fever, and that he did not, therefore, and could not, waive his former jeopardy, or the want of the jurisdiction of the Criminal District Court of Harris County on account of said mental condition." Upon the trial of the case, the County Judge remanded the relator to the custody of the sheriff of Harris County. From this judgment relator prosecuted an appeal to this court, and gave a recognizance for his appearance before the County Judge of Waller County to abide the judgment of this court on his appeal. It has been so long and so well settled in this State that the relator in this character of case cannot prosecute an appeal by entering into bond, but must remain in custody pending the appeal, that we deem it unnecessary to discuss it, or refer to the authorities. Where a party prosecutes an appeal in a habeas corpus proceeding, where the court has remanded him to custody, he must remain in actual custody until this court has disposed of that appeal. The giving of a bond or recognizance for his appearance before the court does not fulfill the demands of the law, which requires that he shall be kept in custody. We desire to say, in passing, that the petition before us shows, in the face of the statements made therein, no reason why this writ should have been granted, for the very questions involved in this application were necessary involved in the trial before the Criminal District Court of Harris and were there found adversely to the appellant, and the decision of that court was affirmed by this court on appeal. It has long since been settled that the judgments of inferior courts cannot be attacked by writ of habeas corpus, unless the judgment is absolutely void; and also that for all mere irregularities which do not affect the question of power or the jurisdiction of the court to act in the case, and which the party call avail himself of by appeal, the writ of habeas corpus cannot be resorted to. See, Ex parte Ezell,
Appeal Dismissed.
HURT, Presiding Judge, absent.
[NOTE. — Appellant's motion and amended motion for rehearing overruled without a written opinion. — Reporter.]
