Ex Parte Haley

228 S.W. 208, 88 Tex. Crim. 649, 1921 Tex. Crim. App. LEXIS 330

• Court: Court of Criminal Appeals of Texas
• Decided: February 9, 1921
• Docket: No. 6118.
• Status: Published

Opinions

LATTIMORE, Judge.

This is an effort by original habeas corpus here sued out, to release applicant from the penitentiary of this State in which he is confined by virtue of a judgment of conviction of murder in Criminal District Court No. 2 of Dallas County. The cause in which applicant was convicted originated in Kaufman County and the venue was transferred by the district judge of that county to Criminal District Court No. 2 of Dallas County. Prior to the time the case was called for 'trial in said last named court, affidavit of the insufficiency of the sureties on applicant’s recognizance was filed with the clerk of said District Court in Dallas County, and he had been arrested and placed in the Dallas County jail.

This application is based on the proposition that the judgment of conviction in said case was void, because the recognizance given on change of venue bound applicant to appear before “the District Court of Dallas County,” and not before Criminal District Court No. 2 of said county. The only objection presented is that the court was misnamed in said recognizance, it being applicant’s position that no such court was then in existence .as the District Court of Dallas County, and that the consequence of such defective recognizance was to deprive the court below of jurisdiction, and that therefore the judgment was void, notwithstanding the fact that he was in the jail of Dallas County, and was brought therefrom to answer this charge, and was personally before the court which tried and adjudged his case.

We do not think the mere fact of a defective recognizance would render void the judgment of a court of otherwise competent jurisdiction such as the trial court in this instance. The case was before the trial court upon a change of venue and it appears that when the order changing the venue was made in Kaufman County, applicant being on bail, was required to make a new recognizance. We do not regard the matter of a defective recognizance in such case any more material as affecting the validity of the judgment rendered in such cause than would a defective recognizance made in any other stage of a criminal proceeding. Short shrift would be made of the case of one who argued the invalidity of a judgment of conviction upon the ground that the bail or recognizance entered into by him for ordinary appearance or appeal, was for any reason defective.

Venue is a matter fixed and controlled by Statute, Chapter 2, Title 4, C. C. P.; and under Article 938 C. C. P., this court by statutory command accepts the presumption that venue in the trial court was proven, unless the matter was there made an issue and the contrary made to appear, which fact must be shown by bill of exceptions properly presented. We observe here in passing that when the case was called for trial in Criminal District Court No. 2 of Dallas County applicant offered no objection to the assumption of jurisdiction by said-court both of his person and of the subject matter of his case, save a plea based on the úse of the word “place” in the order for change of venue. No question as to the sufficiency of the recognizance was pre sented and no other objection to the change of venue was raised; and when the case was before this court on direct appeal, we were under the necessity of affirmance as far as said issue of venue was concerned. We have carefully examined the authorities cited in the able brief.of applicant but are unable to agree to the proposition that the judgment is shown to be void, or that the trial court was without jurisdiction under the facts shown in this record.

The relief prayed for will be denied.

Relator remanded.