Ex Parte Lozano

225 S.W. 59 | Tex. Crim. App. | 1920

The appellant made application to the judge of the Thirty-Fourth Judicial District of the state for writ of habeascorpus. The judge refused to issue the writ, and from the refusal the appellant has sought to perfect his appeal.

The order appears to have been made in vacation. Article 950, C.C.P., provides for appeal in a habeas corpus matter, but says:

"This transcript, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof, but when had before a judge in vacation the transcript may be prepared by any person, under the direction of the judge, and certified to by the judge."

This statute has been held uniformly to require that where the proceeding is in vacation the transcript, to be considered, must bear the certificate of the judge. Ex parte Malone,35 Tex. Crim. 297; Ex parte Overstreet, 39 Tex.Crim. Rep.; Ex parte Young, 87 Tex.Crim. Rep., 219 S.W. Rep., 1102. The State, through the Assistant Attorney General, objects to the transcript upon the ground that it does not comply with the statute in that it does not bear the certificate of the judge. Moreover, we infer from the proceedings that the procedure in the instant case does not confer jurisdiction upon this court on appeal, for the reason that the statute authorizing an appeal contemplates that it shall be taken from a decision of the trial judge or court after a hearing. Ex parte Strong, 34 Tex.Crim. Rep.. The appeal is ordered dismissed.

Dismissed.