Ex parte McKinney

63 S.W.2d 697, 124 Tex. Crim. 428, 1933 Tex. Crim. App. LEXIS 486

• Court: Court of Criminal Appeals of Texas
• Decided: October 11, 1933
• Docket: No. 16286
• Status: Published

Opinion

MORROW, Presiding Judge.

This purports to be an appeal from an order of the District Judge of Erath County made in vacation, in which the application of Jake McKinney for discharge or relief by way of habeas corpus was denied.

As the transcript appears here, the certificate of the clerk of the District Court of Erath County states that the proceedings were had “during vacation.” The transcript is bare of any certificate of the district judge. The statute governing is article 857, C. C. P., 1925, in which it is stated in substance that in a habeas corpus appeal from an order of the judge in vacation the certificate must be made by the judge. The requirement has been held mandatory in the opinion of Presiding Judge Davidson in the case of Ex parte Young, 87 Texas Crim. Rep., 128; also in numerous citations in the case of Ex parte Turner, 296 S. W., 295. Upon the request of the appellant, this court has on several occasions permitted the withdrawal of the transcript so that it may be corrected by the proper certificate of the judge. Because of the condition of the record, this court has no choice other than to order a dismissal of the appeal for want of a sufficient transcript.

The appeal is dismissed.

Dismissed.