Ex Parte Isbell
87 S.W. 145
Tex. Crim. App.
1905
Check Treatment
BROOKS, Judge.

Aрpellant was indicted for violating the local option law in Hill County. The indictment is in proрer form, and presented by the grand jury on April 2, 1904, and numbered on the docket 6886. On Hovember 26, 1904, an оrder was entered by the county court, dismissing said cause Ho. 6886. The judgment of dismissal does not cоntain the reasons of the county attorney upon which the motion to dismiss was based. Howеver, the judgment ‍‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌‌‍recites that a written statement waS filed by the State’s attorney asking for pеrmission to dismiss said cause. Ho motion of the county attorney was filed among the papers. At the subsequent term of the county court, on January 17, 1905, appellant was tried and convicted in said cause by virtue of said indictment. Appellant’s attorney discovered aftеr, too late to file motion for new trial, that said judgment of dismissal had *253 been entered at thе previous term of the court. The record shows that neither appellant’s counsel, nor the then county attorney or county judge knew that said judgment of dismissal had been enterеd. Neither of said officers were so acting when the judgment of dismissal was entered. Appеllant is confined at the county poor farm for the purpose of discharging the amount of the fine and costs under this conviction. He sued out writ of habeas corpus under the аbove state of facts, and being remanded by the district judge, he appeals to this cоurt. He insists that the conviction was void, the case having been dismissed and not reinstated. The Assistant Attorney-General resists appellant’s ‍‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌‌‍discharge, for the reason that the attemрted dismissal was void, in fact the case was never dismissed, for two reasons; first, because there was no evidence before the district judge who heard this case on habeas corpus to sustain him in finding that the county attorney did not file a written statement in the papers setting out his reasons for asking a dismissal; and second, because the judgment fails to incorpоrate the reasons upon which the judgment of dismissal was based. That article 37, Code Criminal Procedure, is mandatory, and should be strictly complied with, both by the State’s attorney and the court. To support this contention he cites us to Kelly v. State, 36 Texas Crim. Rep., 480, and Parchman v. State, 2 Texаs Crim. App., 228. In the first case, we held that the county attorney is only authorized to dismiss a easе upon compliance with the requirement of article 37, Code Criminal Procedure, whiсh requires a written statement by him with the reasons to be filed with the papers in the case, and with the permission to dismiss by ‍‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌‌‍the judge presiding, and such reasons also be incorporated in thе judgment of dismissal; and that a plea in bar setting up a contract or agreement of the county attorney to dismiss a case is worthless unless it, in substance, shows a compliancе with the statutory requirement. Since this case was written we - have re-affirmed it in Maeyers v. Statе, 49 S. W. Rep., 381; Tullis v. State, 41 Texas Crim. Rep., 87. However, we do not think this case is authority for the proposition that where the judge dоes not comply with article 37 in the dismissal of a case,. that the case is not dismissed. The аrticle in question must be complied with in order to secure, as stated in said opinion, immunity from subsеquent prosecution under an agreement with the county attorney; but we do not mean, nоr did we decide that the ease could not be dismissed from the docket without a literal compliance with said article. In Parchman’s case, supra, we held that though the aсt of 1876, regulating the ‍‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌‌‍duties of county attorneys prohibits the dismissal of a prosecution unless а written statement of his reasons for the dismissal be filed by the county attorney, yet if with the permissiоn of the judge, though over the protests of the accused, the county attorney has judgment of dismissal entered, without filing such statement, the omission of the statement is not. available to the accused against a subsequent indictment. This authority appears to support the proposition that the dismissal under consideration was a valid dismissal, so far as the taking of the case off *254 the docket of the County Court of Hill County. Before appellant could be prosecuted for the offense, the.re would have to be a new indictment or information. A failure to comply literally with article 37, would not preclude said subsequent рrosecution. The dismissal ‍‌‌‌‌‌‌​​‌‌​‌‌​‌‌​‌​​​‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌‌‍was a dismissal of the case, and this being true applicant was еntitled to his writ of habeas corpus to be released from the prosecution predicated upon the dismissed indictment, and it is so ordered. The judgment is reversed and relator ordered discharged.

Relator discharged.