Ex Parte McGruder

122 S.W.2d 633, 135 Tex. Crim. 673, 1938 Tex. Crim. App. LEXIS 861

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1938
• Docket: No. 20260.
• Status: Published

Opinion

Krueger, Judge.

This is an appeal from an order of the Hon. S. G. Tayloe, Judge of the District Court of the 45th Judicial District of Texas, remanding the appellant to the custody of the sheriff of Bexar County.

It appears from this record that appellant was convicted in the justice court of precinct No. 1 of said county on a complaint charging him with being a vagrant, and his punishment was assessed at a fine of $200.00 which he failed to pay.

Thereupon the justice of the peace in and for said precinct issued a capias pro fine, under and by virtue of which he was taken into custody by the sheriff and confined in the county jail. Appellant then applied to the Hon. S. G. Tayloe for a writ of habeas corpus, and upon a hearing thereof the court remanded him, as aforesaid.

Appellant does not attempt to attack the validity of the law under which he was prosecuted and convicted, but asserts that the evidence did not justify his conviction. He can not substitute for an appeal the proceedings provided by writ of habeas corpus. He had an adequate legal remedy by appeal to the county court, and if the evidence produced was such as not to warrant his conviction of the offense charged, the presumption obtains that the county court would have respected the law and given him the proper relief. It is well settled that a writ of habeas corpus can never serve the office of an appeal. See Ex parte Lovel, 101 Texas Crim. Rep. 576; Ex parte Drenner, 67 S. W. (2d) 870.

The judgment is 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.