Ex parte Kennedy

May 9, 1934
No. 16792.
Reporters:
, ,
Before:
Lattimore

be authorized to reverse the conviction upon the ground sought in the present appeal. The word “available,” used in the enactment of the “interchangeable jury law,” implies the authority to exercise discretion in the distribution of the jurors so that each court may be supplied. The use of the ‍‌​​‌​‌​​​​‌‌​​​​‌‌​​‌​‌​‌‌​‌​​‌​‌‌‌​​​​​​​‌​​‌‌​​‌‌​‌​​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌‌​‌​‌​‌‌‌​‌​‍word “available” has received judicial interpretation in many instances, among them being the case of Mumme et al. v. Marrs, et al., 40 S. W. (2d) 31, decided by the Supreme Court of Texas, dealing with the discretion of school authorities in the distribution of school funds. See also Words & Phrases, 1st Series, vol. 1, p. 650; Words & Phrases, 3rd Series, vol. 1, p. 749; Words & Phrases, 4th Series, vol. 1, p. 268, in which reports are cited many instances in which the word “available” has been given interpretation consistent with that in the present case. A procedure similar to that pursued in the present case was upheld in the case of Armstrong v. State, 113 Texas Crim. Rep., 171.

It is not claimed that the procedure followed in the present case injured the accused or is calculated to do so, but reliance is had by the appellant ‍‌​​‌​‌​​​​‌‌​​​​‌‌​​‌​‌​‌‌​‌​​‌​‌‌‌​​​​​​​‌​​‌‌​​‌‌​‌​​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌‌​‌​‌​‌‌‌​‌​‍upon the presumption that there was a deviation from the statutory provision and that while not injurious, same would demand a reversal of the case upon review. We are constrained to regard the proceduré followed as authorized by law, and when followed, as interpreted in the present instant, the direction of the statute touching the “interchangeable jury law” in the particular in question is complied with.

The motion for rehearing is overruled.

Overruled.

The opinion states the case.

A. A. Long and Jno. C. Harris, both of Dallas, for appellant.

Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.

LATTIMORE, JUDGE.—Appellant herein filed a motion for rehearing. In considering same our attention has been called to the fact that as far as the record before this court reveals, this case originated in the County Criminal Court of Dallas County, in which, upon conviction, appellant was fined twenty-five dollars for a ‍‌​​‌​‌​​​​‌‌​​​​‌‌​​‌​‌​‌‌​‌​​‌​‌‌‌​​​​​​​‌​​‌‌​​‌‌​‌​​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌‌​‌​‌​‌‌‌​‌​‍violation of a zoning ordinance. In section 239 of his Annotated P. C., Mr. Branch cites numerous authorities, and there are many others, holding to the same proposition,—that the writ of habeas corpus can not be resorted to take the place of an appeal. In his brief appellant makes some reference to the fact that since his fine does not exceed one hundred dollars, he can not come to this court by appeal. We know of no such law except in cases originating in an inferior court and from conviction in which on appeal the case was taken to á county court. If such was the case in the matter before us, the record is wholly devoid of any showing thereof. The only thing remotely suggesting such proposition is in the judgment of the County Criminal Court appearing in this record, wherein ‍‌​​‌​‌​​​​‌‌​​​​‌‌​​‌​‌​‌‌​‌​​‌​‌‌‌​​​​​​​‌​​‌‌​​‌‌​‌​​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌‌​‌​‌​‌‌‌​‌​‍is the statement “(Violating Zoning ordinance—city appeal).” This means exactly nothing. There is no transcript in the record showing that the County Criminal Court obtained jurisdiction other than by the filing therein of the complaint. This court can not presume juris-diction in order to give or refuse a hearing. We are necessarily governed by the record which is filed in the office of our clerk. One who is convicted in the County Criminal Court of Dallas County, in any case which originates there, regardless of the amount of fine, may bring his direct appeal to this court.

Believing that appellant has misconceived his remedy, which should have been by appeal, and that we were in error in considering the matter at all, our original opinion will be withdrawn, and the appeal dismissed, and it is so ordered.

Dismissed.

ON MOTION TO REINSTATE

HAWKINS, JUDGE.—It appears from ‍‌​​‌​‌​​​​‌‌​​​​‌‌​​‌​‌​‌‌​‌​​‌​‌‌‌​​​​​​​‌​​‌‌​​‌‌​‌​​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌​‌​​​‌‌‌‌​‌​‌​‌‌‌​‌​‍the record now before us that there has been an effort to amend the statement of facts after same was filed in this court. This cannot be permitted under the following authorities: McBride v. State, 93 Texas Crim. Rep., 257, 246 S. W., 394, and authorities therein cited. Hurd v. State, 99, Texas Crim. Rep., 388, 269 S. W., 439; Davidson v. State, 4 S. W. (2d) 74.

The motion to reinstate the appeal is overruled.

Overruled.