Appellant was convicted of violating the prohibition law, and sentenced to one year confinement in the penitentiary.
The record in this case presents but one question that need be discussed—in fact, in his briеf this is the only question presented by appellant. The facts agreed to, show that appellant was indicted August 9, 1913; was tried August 18, 1913, in the District Court of the Fifty-ninth District, and the jury returned a verdict stating: “We, the jury, find the defendant guilty as charged in the indictment,” assessing no penalty. Thereafter, the court entered a judgment on this verdict, and on September 13th sentenced appellant to serve a term in the penitentiary for not less than one year nor morе than three years. The appellant did not appeal from this judgment and sentence, but two days after sentence was pronounced, on September 15, 1913, he sued out a writ of habeas corpus before thе judge of the Fifteenth Judicial District, and upon hearing was remanded. From that judgment he appealed to this court, and this court in the case of Ex parte Randell Marshall,
When the case was again called in the Fifty-ninth District Court, appellant entered a plea of former jeopardy, and while there is a motion to strike it out on the ground that the plea is insufficient, we will not pass on that question, as the matter presented is one of importance and likely to often arise, and should be definitely settled.
In the first place we will say, that had not the former judgment and sentence been absolutely void, we could have given no relief under the writ of habeas corpus. As said in Church on Habeas Corpus, sec. 353: “An erroneous sentence rendеred by an inferior court having jurisdiction of the person, place and subject matter can not be successfully attacked upon habeas corpus, unless it is so far erroneous as to be absolutely void.” Our own dеcisions have always followed this rule: Ex parte Japan,
“On the second trial, which ensued after the new trial above noticed was awarded, defendant set up the former trial and conviction and the new trial in a speсial plea, claiming that they operated as an acquittal. This plea of former acquittal was excepted to by the district attorney, and on his motion was stricken out by the court. It is urged on this present apрeal that the court erred in sustaining said exceptions, and in striking out said plea. '
“In Simco v. State, 9 Texas Crim. App., 338, this court had occasion to discuss the nature, character and effect of the special рleas of former jeopardy, autrefois acquit and convict, and one of the rules laid down as established both by statute and decision was that a defendant is not exempt from a second trial for the same offense where a new trial has been granted on his motion; and that if he moves in arrest of judgment, or applies to the court to vacate a judgment already rendered, for any cause, and his motion prevails, he will be presumed to waive any objection to being put a second time in jeopardy, and so he may ordinarily be tried anew. (Code Crim. Proc., art. 21; 1 Bish. Crim. Law, 4 ed., see. 844.)
“Such being the law, and the verdict of the jury being clearly insuffiсient and void, because it failed to find the degree of murder of which the defendant was found guilty, it was most clearly the duty of the court to declare it a nullity, set it aside, and arrest the judgment to be rendered upon it; and under suсh circumstances, whether the new trial is awarded ex mero motu by the court or upon defendant’s motion, the rule
*534
is the same; defendant may again be placed upon trial, and a plea pf former jeoрardy will not avail him. And, the verdict being a nullity, it could not possibly operate an acquittal of murder in the first degree. (See Buster v. State,
Appellant relied on the case of Grisham v. State, 19 Texas Crim. App., 504, an opinion by Judge White, wdiо also rendered the opinions in the cases of Dubose and Sterling, hereinbefore referred to, and Judge White certainly intended to announce no different rule to that announced by him in the Dubose case, rendеred prior to the Grisham opinion, and in the Sterling case rendered by him subsequent to that time, and in the Grisham case he makes it plain that the reason he held the plea good was, the verdict and judgment in the Grisham case were valid, and defendant had suffered at lеast a part of the punishment, and the judgment was set aside by the court without the solicitation of the defendant. He had in no way sought to have himself relieved from the effects of the verdict and judgment.
The facts in this case do not bring appellant within the rulе there announced, but in this case, within two days after the rendition of the sentence, appellant moves by applying for habeas corpus to be relieved of any and all punishment under the judgment, sentence and verdict theretofore rendered and entered, and on his motion and solicitation, and by virtue of proceedings brought by him he is by this court relieved from undergoing the penalty fixed by the judgment and sentence, this court holding the vеrdict was insufficient in law upon which to base the sentence and judgment.
However, -in his brief appellant contends that he was “constructively” in the penitentiary from September 13th to ¡November 13, 1913, the date this court rendеred the opinion holding the judgment and sentence void. We do not think the facts in this case justify any such conclusion, for two days after sentence he applied for and was granted a writ of habeas corpus by the District Court, and from that time until this court disposed of his appeal, had he been conveyed to the penitentiary, the officer so doing would have been in contempt. Appellant by his act in applying for the writ, had stayed the hands of the officers, and he could not from and after the date of granting the writ be legally confined in the penitentiary,, and as a matter of fact he has not been, nor is it contended that he has been confined therein. So he has undergone no part of the punishment. But if this were not true, and he had undergone part of the punishment-under a void judgment, if he secured his release therefrom by applying for a writ of habeas сorpus, a plea of former jeopardy would not be sustained. This question is exhaustively discussed by -Judge Davidson in the case of Ogle v. State,
The United States Supreme Court, in the case of Murphy v. Mass,
This is the rule adopted in this court, except that in case the verdict is insufficient, and the judgment and sentence void, as said by Judge *536 White in Dubose v. State, supra, the court on his motion may set it aside before punishment is undergone. However, in this instance it was set aside and held void by this court at the request of appellant, and the court did not err in striking out the plea, and the judgment is affirmed.
Affirmed.