Lead Opinion
This is аn appeal from an order of the County Judge of Lamar County declining to discharge the appellant from the custody of the sheriff upоn a hearing of a writ of habeas corpus.
The record discloses that on the 7th day of November, 1942, a complaint and information were filed in the County Court of Lamar County charging appellant with the offense of possessing whisky in a dry area for the purpose of sale. To this сharge appellant entered a plea of guilty, whereupon the trial court assessed his punishment at a fine of $250.00 and remanded him to thе custody of the sheriff until said fine and costs should be paid. Thereafter, on the 16th day of November, appellant applied to the County Judge of said county for a habeas corpus and prayed that upon the hearing thereof, he be discharged from the custody of the sheriff. He attacked the judgment of conviction upon the following grounds: (a) Because the court was without jurisdiction to assess any fine or jail sentence in that there was no regular term of court then in session; (b) because he was forced by the officers to enter a plea of guilty whilе under duress; (c) because there was no sworn evidence offered to prove the allegations in the information; (d) because he wаs not advised that he was entitled to a trial by a jury; (e) because there is. not a valid complaint upon which an information could be basеd; and (f) because there was no evidence adduced to show that Lamar County was a dry area.
Upon the hearing of the writ, the court heard evidence relative to the matters charged in the application and upon the conclusion thereof, remanded aрpellant to the custody of the sheriff, to which order and judgment he excepted and gave notice of appeal to this court.
Thе judgment of conviction, upon its face, appears to be regular. Hence the presumption obtains that all legal requirements wеre complied with in the trial of the case which resulted in his conviction, and the burden of proof rested upon the appellant to overcome this presumption. He took the witness stand and testified that he was the same person named in the complaint and information filеd in the County Court of Lamar County in cause No. 2480 in which he was charged with the offense of possessing whisky in a dry area for the purpose of sale; that the officers searched his premises and found three pints of whisky; that the officers asked him what he was going to do and he said that he was going to see a lawyer; that they then told him that he would be put where he could not see a
While we would not need to pass upon the sufficiency of the complaint and information in this proceeding, yet we have examined them and they appear to be sufficient to charge the offense of which he was convicted. See Schnair v. State,
Appellant claims that the judgment of conviction is void because it was entеred by the court while in vacation. If the court was in vacation, then the judgment would be void, but the determination of this question depended upon рroof. There is no evidence to sustain said allegation, and in the absence of such proof the presumption obtains that the cоurt acted in accordance with the law.
With reference to the appellant’s complaint that there was no evidence introduced showing that Lamar County was a dry-area, we deem it sufficient to say that in a misdemeanor case where the defendant enters a рlea of guilty, it is not necessary to introduce evidence showing the guilt of the defendant, because Article 502, C. C. P., has application to fеlony cases only. See Ex parte Bostick,
Now, with reference to his contention that the judgment of conviction is void because he was not asked whether or not he waived a jury, we desire to make the following observations: A trial by a jury is guaranteed by the Constitution to evеryone accused of a crime. However, in some cases he may waive a jury. If appellant had demanded a trial by a jury and the сourt had declined to agree to such a trial, a more serious question would have been presented; but in the instant case his complаint is not that he was denied a trial by a jury but that he was not
Ordinarily, one who has been convicted of an offense cannot resоrt to habeas corpus proceeding to have his case reviewed by this court, unless the judgment of conviction is absolutely void. Otherwise his remedy is by appeal. See Ex parte McCuistian,
We see no merit in any of the appellant’s contentions. Therefore, the judgment of thе trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
Appellant insists that we were in error in the disposition made of his several contentions. He presents no nеw or additional reasons for a reversal of the case.
We remain convinced that the case was correctly disposed of in our original opinion.
We again call attention to the fact that the writ of habeas corpus cannot serve as a substitute for an аppeal. Appellant presents no grounds whereby the conviction may be attacked by such writ.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.