88 S.W.2d 100 | Tex. Crim. App. | 1935
Lead Opinion
It appears from the record before us that relators were charged by complaint filed in the justice court of precinct No. 1 of McCulloch County, with the offense of unlawfully keeping and exhibiting a gaming table and bank, to-wit: a marble table. Upon a hearing before the justice of peace, who was sitting as a magistrate, relators were ordered to give bond in the sum of five hundred dollars each for their personal appearance before the district court of said county, to be begun and holden on the first Monday in October, 1935, the same being the 7th day of October, 1935, to await the action of the grand jury, but in default of giving bond they be committed to jail. Thereafter they applied to the Honorable E. J. Miller, Judge of the 35th Judicial District of Texas, for a writ of habeas corpus by which they sought their release from custody. Upon a hearing, the judge made a similar order as that of the magistrate, to which they excepted and appealed to this Court.
This court has consistently held that a writ of habeas corpus will not lie where the remedy at law is adequate, nor *467
will it lie after indictment to prevent a trial on the merits. See Branch's Texas P. C., Sec. 239; Ex parte Kent,
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
We adhere to the well considered *468 and supported rule that when the facts in any case attempted to be brought here on habeas corpus, show that the controversy could have been brought here in the regular channel of an appeal, we will decline to dispose of same by habeas corpus.
In this case we have two men charged in regular form and manner before a magistrate with the commission of a felony, who upon hearing of their cases, were bound over to await the action of the grand jury, and their bonds fixed at a reasonable amount, it not being here contended that the amounts fixed were unreasonable. Whether said men could make such bonds is not shown, but on the same day as the order of the magistrate an application for habeas corpus was presented to a district judge, same merely alleging in general terms illegal restraint. He granted the writ and heard the matter and remanded applicants, reciting only that in his opinion applicants were legally held. If we understand it, the question was whether the particular form of gaming table alleged to have been exhibited would be a gaming table or bank under our statute. A determination of this question would require a full development of the facts, and is entirely different in principle from Ex parte Roquemore, 60 Tex.Crim. Rep., relied on by applicants in their motion. We think the case correctly disposed of in our original opinion, and that every proposition involved could and should be fully developed upon a trial and brought here by the regular route of an appeal. See Ex parte Jarvis, 109 Tex.Crim. Rep..
The motion for rehearing is overruled.
Overruled.