Ex Parte Evans

4 S.W.2d 67, 109 Tex. Crim. 231, 1928 Tex. Crim. App. LEXIS 194

• Court: Court of Criminal Appeals of Texas
• Decided: February 8, 1928
• Docket: No. 11631.
• Status: Published

Opinions

LATTIMORE, Judge.

It appears that appellant was convicted in the justice court of precinct No. 1, Franklin County, for a violation of the tick eradication law, in that he drifted or drove three head of cattle from Red River County, same being tick-infested territory, into Franklin County, which was territory then engaged in the process of tick eradication. A jury trial was had. No appeal or effort to appeal the case to the County Court of Franklin County appears in the record.

Asserting that the complaint charged no offense, and that the verdict was so informal and incomplete as to not form the basis of a proper judgment, appellant sued out his writ of habeas corpus in the County Court of Franklin County where, upon á hearing, he was remanded, and now brings this appeal. We perceive no reason why appellant did not appeal his case to the County Court of said county, which had appellate jurisdiction thereof, and in which court the presumption is that the law be and would have been followed. The trial there, would have been de novo, and the necessary presumption is that if the complaint was insufficient a motion to quash same would have been sustained; also that if the complaint had not been quashed and a trial had been had, the judgment and verdict would have been in conformity with law. This court uniformly declines to take jurisdiction of matters which, following orderly procedure, properly belong to other courts until and unless it is shown that due efforts have been made following the course prescribed by law. We have always declined to permit the writ of habeas corpus to usurp the function of an appeal. We perceive nothing in this case to differentiate it from those in which this rule has been announced. Ex Parte Oates, 91 Tex. Crim. Rep. 79; Ex Parte Mitchum, 91 Tex. Crim. Rep. 62; Ex Parte McKay, 82 Tex. Crim. Rep. 221; Ex Parte Garcia, 90 Tex. Crim. Rep. 288; Ex Parte Drane, 80 Tex. Crim. Rep. 543; Ex Parte Meggs, 99 Tex. Crim. Rep. 391; Ex Parte Stanford, 100 Tex. Crim. Rep. 559; Ex Parte Lovel, 101 Tex. Crim. Rep. 576.

There appears in thfe record a contention on the part of appellant that the law under which this prosecution was had is vague and unintelligible and therefore unenforceable. Said prosecution is under Sec. 10, Chap. 122, General Laws, Thirty-ninth Legislature. We do not think the contention of appellant sound in this regard.

Believing the matters here attempted to be raised all to be properly for the County Court of Franklin County on appeal, and that this court must decline to consider the matters here presented by habeas corpus, the judgment will be affirmed.

Affirmed.