408 S.W.2d 540 | Tex. App. | 1966
This is an appeal from a proceeding on a writ of habeas corpus. Petitioner was in-dieted for murder. His defense was insanity. The jury found him insane at the time of the commission of the offense as well as at the time of the trial. By a judgment duly entered by the 140th District Court of Lubbock County, Texas, on November 18, 1959, petitioner was committed to the Rusk State Hospital in Cherokee County until he became sane, in accordance with Article 932b, C.C.P., Vernon’s Ann.T ex. Civ. St.
On July 10, 1964, he filed a petition in the County Court of Cherokee County, for a re-examination and hearing of his present mental condition, under the provisions of Article 5547, Vernon’s Ann.Tex.Civ.St.,
“It is THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Petitioner’s Petition and Application for Writ of Habeas Corpus be and the same is hereby in all things denied, and the Writ of Habeas Corpus heretofore issued by this Court in this cause is in all things hereby ordered dismissed.”
Petitioner duly excepted to the ruling of the court and perfected this appeal.
No evidence was offered at the hearing on the issue of petitioner’s sanity, nor was any such evidence tendered by way of a bill of exception. Petitioner does not now contend that the record is sufficient for us to order his discharge. His prayer is that the cause be reversed and that the trial judge be ordered to hear the case on its merits and determine whether he is now sane and entitled to be released.
Respondents, on the other hand, contend that the appeal must be dismissed for want of jurisdiction. We think this contention must be sustained.
The action of the trial court in dismissing the application and recalling the writ of habeas corpus is tantamount to a refusal to grant the writ in the first place. It is now settled that such an order is not a final judgment of which this court has jurisdiction on appeal. Ex parte Strong, 34 Tex.Cr.R. 309, 30 S.W. 666; Ex parte Hodges, Tex.Cr.App., 45 S.W. 913; Ex parte Dugue, 169 Tex.Cr.R. 293, 333 S.W.2d 382.
Appellate jurisdiction exists only after a hearing upon the merits of the case. Ex parte Jones, 34 Tex.Cr.R. 344, 30 S.W. 806.
There being no trial on the merits in the court below, this court has no jurisdiction and for this reason, the appeal must be dismissed.
. Section 1(b).
“If the jury finds the defendant to be insane at the time of trial, the court shall enter an order committing the defendant to a State mental hospital * * * to be confined therein until he becomes sane.”
Section 2.
“A person committed to a State mental hospital under this act upon a jury finding of insanity at the time of trial who has been acquitted of the alleged offense is not by reason of that offense a person charged with a criminal offense and therefore the head of the mental hospital to which he is committed may transfer, furlough and discharge him and shall treat him as any other patient committed for an indefinite period.”
. Section 82.
“(a) Any patient, or his next friend on his behalf and with his consent, may petition the county judge of the county in which the patient is hospitalized for re-examination and hearing to determine whether the patient requires continued hospitalization as a mentally ill person.
“(f) If the court finds that the patient does not require continued hospitalization as a mentally ill person, the court shall order the head of the hospital to discharge the patient. Otherwise, he shall dismiss the Petition.”
Section 4 defines a “mentally ill person” as one who is of unsound mind or whose mental health is substantially impaired.