3 S.W.2d 84 | Tex. Crim. App. | 1928
By complaint and information in two counts relator was charged in the County Court of McCulloch County with bookmaking and betting upon a horse race, which are denounced as offenses by Articles 647 and 648 of the Penal Code. He applied to this court for an original writ of habeas corpus, the only purpose of which is to test the sufficiency of the information to charge an offense. No attack is made upon the validity or constitutionality of the law upon which prosecution is based. In the regular course of ordinary procedure relator could have presented to the County Court a motion to quash the information. The presumption is that the ruling of the presiding judge of that court would have been correct, and that if in his judgment the information failed to charge an offense he would have so held. If relator was not satisfied with the action of that court he could come to this court by the statutory method of appeal for a review of the question.
We first take note of the authorities to which we are referred by relator as supporting his contention that the writ should issue. Ex Parte Ballard, 87 Tex.Crim. Rep.,
Whatever may be the rule in other jurisdictions, it seems to be the settled policy in this state not to permit resort to habeas corpus proceedings primarily for the purpose of testing the sufficiency of a complaint or indictment in advance of a trial in the lower court. In Ex Parte Oats, 91 Tex.Crim. Rep, 79,
"It is the well settled rule that the sufficiency of the complaint and indictment will not be inquired into upon habeas corpus unless it appears that the accused has exhausted his remedies by appeal, certiorari, etc., or that the law under which the prosecution is brought is for some reason invalid."
In Ex Parte Mitchum, 91 Tex.Crim. Rep.,
"The indictment having been presented in a court of competent jurisdiction by a grand jury regularly organized, and there being a law under which the prosecution may be maintained, an irregular or insufficient averment of the facts does not entitle the accused to release under a writ of habeas corpus. His remedy for such defect is to invoke the ruling of the trial court and present (complaint) to this court on appeal if the ruling is against him. Ex Parte McKay, 82 Tex.Crim. Rep.,
Similar expressions or holdings illustrative of the principle will be found in Ex Parte Drane, 80 Tex.Crim. Rep.,
"The writ of habeas corpus will not lie where the remedy at law is adequate, nor will it lie after indictment to prevent a trial on the merits, although an agreed statement of facts shows that the accused is not guilty."
The test is supported by Ex Parte Windsor,
Because of the rather unusual and exhaustive averments in much detail of the facts in the present information, supplemented by an agreed additional statement of facts, what this court had to say in Ex Parte Windsor (supra) seems peculiarly appropriate. (Italics are ours.)
"* * * The application, together with the exhibits, shows that relator is under arrest, charged by complaint and information with unlawfully engaging and assisting in taking and accepting from one Max Price a bet of $10 on a horse race to be thereafter run, on December 10, 1903, in the State of Louisiana, etc. In connection with the application there is also an agreed statement of facts which tends to show that the bet or wager was not made in Grayson County, Texas, but was made in Hot Springs, in the State of Arkansas; the contention being that the same is not an offense in this state under the Acts of the Twenty-Eighth Legislature, prohibiting the buying and selling of pools, etc., on horse races. See Gen. Laws, 28th Leg., p. 68, c. 50. It appears from the presentation of thecase that it is an attempt on the part of the relator to avoida trial in the court below and have the case tried in thiscourt. It has been frequently held by this court that the writ of habeas corpus can only be granted in extraordinary cases, where the remedy *56
at law is not adequate. See Ex Parte Ezell,
Upon presentation of the application for the writ in the present case to one of the members of this court, the writ was not granted, but the matter was set down for a hearing with notice to the officer having appellant in custody to show cause why the writ should not be granted, and bail was fixed pending determination of that matter.
It follows from what has been said that it is the opinion of the court that the writ should be denied.
Writ denied.