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opinion that the Court of Criminal Appeals, court. Upon the same principle this court will has jurisdiction to issue a writ of habeas refrain from issuing writs of habeas corpus corpus in any case where a person is illegal- against restraint under orders in a civil ly restrained of his liberty. See articles 69 case because it is more orderly and expediand 160, C. C. P. Article 174 prescribes the ent that the Supreme Court should pass requisites of a petition for a writ of habeas upon such habeas corpus proceedings as are corpus, and article 175 is as follows: placed within its jurisdiction by the statute mentioned above. So in a contempt proceeding where it appears that it grows out of an alleged failure to observe an order in a civil cause this court will refuse to grant the writ relegating the party to his remedy in the Supreme Court.

"The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever."

See articles 181 to 183, C. C. P., also.
The Constitution contains the following:

[4] This procedure would have been fol"The Court of Criminal Appeals and the judg-lowed in the instant case except for the fact es thereof shall have the power to issue the writ that when the application was presented it of habeas corpus, and, under such regulations did not contain a copy of the order or process as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction." Article 5, § 5.

The Supreme Court also has power to issue writs of habeas corpus in certain cases. Article 5, §3, of the Constitution provides: "The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law."

And Acts 1905, p. 20 (Rev. Civil Statutes 1911, art. 1529), provides, in substance, that the Supreme Court or any justice thereof shall have power to issue writs of habeas corpus where a person is restrained of his liberty by virtue of any order of a court or judge issued in a civil cause. The effect of these constitutional and statutory provisions, as the writer understands them, is that the Court of Criminal Appeals is vested with authority to issue writs of habeas corpus in all cases where a person is illegally restrained of his liberty, and that the act of the Legislature vesting in the Supreme Court authority to issue such writs where restraint grows out of a civil case gives the Supreme Court concurrent jurisdiction with the Court of Criminal Appeals in such cases. This, we understand, is the construction placed upon the statute by the Supreme Court; at least such is the intimation in Ex parte Allison, 99 Tex. 464, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. It is also in harmony with the conclusion reached by this court in Ex parte Allison, 48 Tex. Cr. R. 635, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684.

[2, 3] It does not follow that the Court of Criminal Appeals will exercise its jurisdiction by granting a writ in every application for writ of habeas corpus. The contrary policy has been declared and made necessary; and, generally speaking, it will not issue original writs of habeas corpus in cases where other courts have jurisdiction to do So.

under which the relator was held, but stated that it could not be obtained. This was in accord with article 174, C. C. P., which prescribes the requisites of a petition for a writ of habeas corpus. Since the record has been brought here it is apparent that it does grow out of an order in a civil cause, and it ought to have been presented to the Supreme Court, but the writ having been issued under the circumstances mentioned it appears to be the duty of this court to decide the question raised.

The facts show that the relator is an officer in a corporation known as La Union Fraternal, domiciled in El Paso county, Tex.; that it formerly operated at the town of Ysleta, in that county, but at the time the transaction involved in this proceeding occurred it was operating in the city of El Paso in the same county. On the 20th day of July, 1916, a suit was filed against it and against relator, who was one of its officers, which suit was prosecuted to judgment, from which we take the following excerpt:

"It is therefore ordered, adjudged, and dein plaintiff's original petition filed herein the creed that the writ of injunction as prayed for 20th day of July, A. D. 1916, be granted, and that the defendant, La Union Fraternal a corporation, and its officers, agents, servants, and perpetually enjoined and restrained from using employés, and Ike Alderete, be and are hereby the premises of said club, or any part thereof, for the purpose of selling spirituous, vinous, and malt liquors, or either of them, and from keeping for sale therein spirituous, vinous, or malt liquors, and from using the stock, means, assets, and property of the said La Union Fraternal, a corporation, for purchasing, selling, and and other persons." dispensing intoxicating liquors to its members.

Appeal was prosecuted from this judgment to the Court of Civil Appeals, and the matter has been finally determined against relator, and the order disposing of it is not one from which a writ of error to the Supreme Court would lie.

Ex parte McKay, 199 S. W. 637, and cases cited. This is because primarily the The relator was cited and appeared in a functions of the Court of Criminal Appeals contempt proceeding in the court which renare appellate, and it is much more expedient dered the judgment mentioned and the hearthat habeas corpus questions be determined ing, and order was issued adjudging him by the district courts where they have juris- in contempt of said court, from which order

"Finding that it having been proven that said Ike Alderete disobeyed the said injunction and final judgment on March 1, 1918, in this, that he sold and kept for sale intoxicating liquors at the premises of La Union Fraternal, a corporation, in El Paso, El Paso county, Tex., and that he on said date used the stock, means, and assets of said corporation for the purpose of selling and keeping for sale and dispensing intoxicating liquors to the members of said corporation, and further that said Ike Alderete was an officer, to wit, treasurer of said corporation on said date."

The order further fixed the punishment of relator at a fine of $100 and imprisonment in the county jail for three days.

[5] The agreed statement of facts sustains the finding. It is obvious that the injunction related to the business or occupation in which the relator and the corporation of which he was an officer was engaged, and that its effect was not to be avoided by removal to another town in the same county any more than transferring its business to another house in the same town would have done so.

[6] To hold one adjudged in contempt in custody a valid and entered order or judgment and a commitment issued thereon are necessary. The record discloses that on March 9th the court trying relator for contempt stated that an order adjudging him guilty and fixing his punishment would be made, and that thereafter, on the same day, after the sheriff had taken charge of relator, this order was entered on the docket, and was subsequently, on the 11th of March, merged in the judgment and spread upon the minutes. This judgment has been quoted from, and bears date of March 9th. This writ of habeas corpus was applied for and issued on March 20th. The sheriff in his return states that the relator was taken into custody by virtue of an oral order of the district judge of the Thirty-Fourth judicial district made in a proceeding on the docket of that court March 9, 1916, adjudging relator in contempt; that no commitment was delivered to him until the 19th day of March, at which time there was delivered to him the commitment which was attached to his return and which is formal and appears based on the judgment entered in the minutes of the court, above referred to. In the absence of a commitment relator was illegally restrained. Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; Goodfellow v. State, 53 Tex. Cr. R. 473, 110 S. W. 755; Ex parte Duncan, 42 Tex. Cr. R. 672, 62 S. W. 758; Ex parte West, 60 Tex. Cr. R. 497, 132 S. W. 339; Ex parte Davis, 48 Tex. Cr. R. 646, 89 S. W. 978, 122 Am. St. Rep. 775; Ex parte Andrews, 51 Tex. Cr. R. 83, 100 S. W. 376; Ex parte Kilgore, 3 Tex. App. 247; Ex parte Coffee, 72 Tex. Cr. R. 209, 161 S. W. 975; Ex parte Dena, 63 Tex. Cr. R. 379, 140 S. W. 346; Ex parte Ogden, 63 Tex. Cr. R. 380, 140 S. W. 345.

[7] Where one is held in contempt proceedings on a verbal order and obtains from this court a writ of habeas corpus, the

court making the order is without power to correct it or to oust the jurisdiction of this court which attaches by issuance of the writ, by causing a commitment to be issued. This is held in Kearby v. State, supra, and other cases, and is based upon article 211, C. C. P.

The facts of this case, however, are not such. At the time the writ of habeas corpus was issued by this court the sheriff had in his possession the commitment issued on the previous day, which commitment he attaches to his return in compliance with article 190, C. C. P. We understand the cases cited above, notably the Case of Kearby, to justify the inference that the right of the court making the order to amend the process issued thereunder exists prior to the time that the writ of habeas corpus was issued. This view appears to be supported by the statute (article 205, C. C. P.). In all events it occurs to us that, inasmuch as the return of the sheriff of El Paso county, to whom the writ of habeas corpus was issued, shows that at the time the writ was issued he was holding relator under a commitment previously issued, supported by a valid judgment, we would not be authorized to discharge the relator on account of the fact that before the commitment was issued the relator had been by the sheriff illegally restrained of his liberty. It would seem that the question for us to decide is whether at the time the writ applied for was issued there was any illegal restraint. Acting upon this view, we must order the relator remanded.

PRENDERGAST, J., absent.

On Motion for Rehearing.

MORROW, J. [8] No writ of habeas corpus was ever issued herein. An application for such a writ was filed, and the order made by the presiding judge releasing relator on bail pending a decision by the court whether a writ would be issued or not. The writ was refused upon the mistaken ground that the order for discharge on bail was made after the commitment was in the hands of the sheriff. This fact was gathered from the pencil memorandum granting the order written on the application. The order was in fact made at a time when the sheriff had no commitment for the relator in his hands, and was holding him under a verbal order of the trial judge, for which reason we were in error in refusing the writ, which error we now correct by setting aside the order refusing it and granting the writ of habeas corpus.

[9, 10] The judgment was rendered on March 9th, and a memorandum made of it. It purports, as written, to have been rendered March 9th, though it appears aliunde that it was not physically transcribed on the minutes until the 11th of March. We do not understand that there was any question of the entry of the judgment nunc pro tunc involved. We are of opinion that the order made by this court did not suspend the power of the trial

See

court to have written on its minutes the judg-ous in which this has been declared.
ment it had rendered. The order was an ob-
stacle to any interference with the liberty of
the relator by virtue of the judgment, or any
process issued thereunder pending the dispo-
sition of the matter in this court, and if this
court on the hearing had determined that the
facts did not authorize the rendition of the
judgment, the relator could not be held upon
any subsequent process issued thereon. This
court having determined that the facts did
authorize the rendition of the judgment, and
it having been entered in the record, and the
discharge of relator being upon the ground
that at the time the order of this court was
made there was no judgment entered or pro-
cess issued authorizing his detention, its pres-
ent order discharging him is no impediment
to the subsequent enforcement of the judg-
ment of the district court by proper process.
The application for writ of habeas corpus
is granted, and the relator is ordered dis-
charged.

cases cited in Miller v. State, 200 S. W. 391,
motion for rehearing; Ex parte Singleton,
72 Tex. Cr. R. 123, 161 S. W. 123; Ex parte
Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Legate
V. Legate, 87 Tex. 248, 28 S. W. 281; Ex
parte Reeves, 100 Tex. 617, 103 S. W. 478.
The Supreme Court is given jurisdiction of
habeas corpus proceedings growing out of a
civil cause. See article 5, § 3, of the Constitu-
tion, and Rev. Civ. St. 1911, art. 1529. While
this court also has jurisdiction to issue a
writ of habeas corpus, when one is illegally
restrained of his liberty (art. 5, § 5, of the
Constitution), we will not exercise it as
against an order made in a civil case, but
will relegate the applicant to the pursuit of
his remedy in the courts of civil jurisdiction.
Ex parte Alderete, 203 S. W. 763, not yet offi-
cially reported; Ex parte Mussett, 72 Tex.
Cr. R. 487, 162 S. W. 846.

(83 Tex. Cr. R. 375)

Ex parte LITTLE. (No. 5032.)

We therefore decline to issue the writ of habeas corpus and remand the relator to the respondent, John W. Tobin, sheriff of Bexar county, without in any way prejudicing relator's privilege of pursuing his remedy

(Court of Criminal Appeals of Texas. May 8, by habeas corpus or otherwise in the civil courts having jurisdiction.

1918.)

HABEAS CORPUS 44-JURISDICTION-COURT
OF CRIMINAL APPEALS.

While under Const. art. 5, § 5, the Court of Criminal Appeals has jurisdiction to issue a writ of habeas corpus, where a person is illegally restrained, relator, who was adjudged guilty of contempt in a controversy over the custody of a dependent child, under Vernon's Sayles' Ann. Civ. St. 1914, arts. 2184-2190, a civil proceeding, will be relegated to pursuit of his remedy in courts of civil jurisdiction, in view of Const. art. 5, § 3, and Rev. St. 1911, art. 1529, giving Supreme Court jurisdiction of habeas corpus proceedings growing out of a civil

case.

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mark and which was signed by a competent Confession to which defendant made his witness is not inadmissible because also signed by an incompetent witness.

2. CRIMINAL LAW 530-CONFESSIONS. Where the fruits of a crime may alone have been discovered by reason of a confession, the Application by William Little for a writ of confession is admissible whether or not in writhabeas corpus. Denied. ing or signed.

Chambers & Watson, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J. Relator applied for a writ of habeas corpus, seeking discharge from an order of the county judge of Bexar county adjudging him guilty of contempt. The order permitting the application to be filed was on the theory that the judgment was entered in a proceeding under the juvenile delinquency act. Vernon's Texas C. C. P. p. 985, tit. 17. This act has been construed criminal in its nature. Ex parte McLoud, 200 S. W. 394; Ex parte Pruitt, 200 S. W. 392; Miller v. State, 200 S. W. 389; McLaren v. State, 199 S. W. 811. Since the application has been supplemented by the facts it appears that the proceeding grew out of a controversy over the custody of a dependent or neglected child. See Vernon's Civil Statutes, vol. 2, tit. 38, c. 1, arts. 2184 to 2190, inclusive.

Proceedings under this statute we regard as civil in their nature. Instances are numer

3. CRIMINAL LAW 465-EVIDENCE-OPIN

ION.

Witness, after stating that he found a panel of the door broken out or removed, could state that one could reach through the space and remove the latch so as to open the door.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Willie Elliott was convicted of burglary, and appeals. Affirmed.

S. E. Dawson and E. L. Routh, both of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of burglary and allotted two years in the penitentiary.

The state's evidence is to the effect that the owner of the burglarized house went away, and that appellant went into it and took therefrom a pistol. The state's theory is that appellant went to the back door, removed a panel or board so he could and did remove the latch, and thus entered the house. There is evidence that the door was in the

condition indicated. Appellant's statement | Fears' testimony was admissible. There was was that he did go to the house; that the nothing further urged, and that closed the door was partly open; that he might have incident as shown by the judge's qualifica"edged" through it, but did push the door tion to the bill. In any event we are of back far enough to make his entrance; that opinion there is no such error in this as rehe searched for a pistol, which he wanted quires the court to reverse the judgment if to carry with him to the Trinity river bot- there should even be error. tom, and found the pistol and took it away. The judgment will be affirmed. The owner of the house shows there had been other things disturbed in the house; his pants pockets had been turned inside out, and things misplaced generally.

May

LEWIS v. STATE. (No. 5026.) (Court of Criminal Appeals of Texas. 15, 1918.) CRIMINAL LAW 1090 (8)-APPEAL-RECORD BILL OF EXCEPTIONS STATEMENT OF FACTS.

In the absence from the record of a statement of facts or bill of exceptions, sufficiency of the evidence to sustain the verdict cannot be reviewed.

Appeal from District Court, Austin County; M. C. Jeffrey, Judge.

Owen Lewis was convicted of assault to murder, and he appeals. Affirmed.

E. B. Hendricks, Asst. Atty. Gen., for the State.

[1, 2] Appellant made a written confession while under arrest, which seems to be in conformity with the statute. The introduction of the confession was resisted on the ground that it was witnessed by a peace officer. It shows that the confession was taken by the assistant county attorney, Mr. Fears, who signed it as a witness, and that a peace officer did also sign it. The objection is based upon the ground that appellant could not write, but made his mark to the confession, and the peace officer was not a competent witness. It is not contended, however, that the assistant county attorney was incompetent to sign it as a witness. If the peace officer alone had signed it as a witness, it would have been inadmissible under the statute, but, Mr. Fears having signed it also, we are of opinion that, where a competent witness signs and an incompetent witness signs, the confession is not rendered inadmissible by reason of the fact an incompetent witness also signed it. Had the deputy sheriff or peace officer alone signed it, the admission of the confession would have been erroneous. It seems also from the confession and the evidence that by reason of this confession the pistol was found. When the confession was made the officer took the defendant with him to where he said the pistol was, and defendant got the pistol at the point designated. Wherever the fruits of a crime may alone have been discovered by 1. CRIMINAL LAW 369 (5)-EVIDENCE-OTH

of the confession, the confession would be admissible whether it was in writing or not, or whether signed or not.

[3] There is another bill of exceptions reserved to the admission of the testimony of Mr. Fears, assistant county attorney, to the effect that when he went to the house he found a panel of the door broken out, or removed, and that a party could reach through this space and remove the latch on the inside so as to open the door. The basis of the objection was that his was an opinion, and that he should have stated the facts and let the jury reach the conclusion or form their opinion. We do not regard this as a serious matter, and especially as qualified by the trial judge. If such was the condition of the physical facts, we are of opinion Mr. Fears could so state, and the court in his qualification informed counsel at the time of the objection that if such was the case Mr.

DAVIDSON, P. J. Appellant was convicted of assault to murder; his punishment being assessed at 15 years' confinement in the penitentiary. There is neither a statement of facts in the record nor bill of exceptions. The only question suggested for revision is the want of sufficient evidence to sustain the verdict of the jury. In the absence of the evidence, this question cannot be reviewed. The judgment will be affirmed.

MOORE v. STATE.

(83 Tex. Cr. R. 319) (No. 5003.)

(Court of Criminal Appeals of Texas. April
24, 1918. Rehearing Denied May
22, 1918.)

ER CRIMES.

In a prosecution for theft of an automobile, where defendant's participation in the theft and disposition of the car were squarely in issue, evidence of other auto thefts in which defendant's accomplice testified defendant participated was inadmissible, not serving to connect defendant with the crime, to prove his identity with it, or his intent, and not constituting any part of the res gestæ. 2. CRIMINAL LAW

5102-CORROBORATION

-ACCOMPLICE IN LARCENY.

That defendant, charged with theft of an automobile, was in possession of the recently was proper testimony to corroborate the accomstolen car in connection with his accomplice, plice, who was a state's witness.

3. LARCENY 49-EVIDENCE OF OTHER OFFENSES-IDENTITY.

other indictments and the verdict of a jury in In prosecution for larceny of an automobile, another case were not introducible on the question of defendant's identity.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

George Moore was convicted of theft of an

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

automobile, and he appeals. Reversed, and do with the taking or the disposition of the cause remanded.

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. The state's case was made by an accomplice named Tiller. His testimony substantially is that he and appellant got the auto in Waco, and after traveling in different parts of the state finally wound up at El Campo, in Wharton county, and sold it to G. W. Wil

son.

The testimony of the accomplice is positive as to the theft and the sale, and appellant's presence at the time of the taking and his co-operation and participancy in the sale at El Campo, and the money received from Wilson. Wilson identified the defendant

as being at El Campo at the time, and coinciding and assisting Tiller with the car and its disposition. This, without going into the details of the case, is the case, in substance, for the state. Appellant denied the transaction in toto, both as to the taking and the sale so far as he was concerned, and denied his presence at any time or any participancy in the entire transaction from beginning to finish.

[1-3] The court over various objections permitted the introduction of evidence of other auto thefts in which Tiller testified that appellant participated. The objections are based upon the theory that independent and extraneous matters and offenses are not admissible unless they in some way are necessary to show appellant's guilt or connect him with this transaction. This is a sound proposition. Many cases can be found collated in Mr. Branch's Ann, P. C. pp. 98 and 99. Appellant collates in a very able brief a lot of these cas

There seems to be no just theory upon which these extraneous matters were admissible in this case. They in no way serve to connect defendant with this transaction, or prove his identity with this transaction, orhis intent in taking this car, nor did they constitute any part of the res gestæ. They were independent offenses committed at different times and under different circumstances. It was a square-put issue under the facts of appellant's participancy in the theft and the disposition of the property. There was no issue, if he did so, of his identity, or his intent, because if he did he was guilty, and the other cases have no connection with this case, and, not serving any purpose to connect him with it or show his intent, were inadmissible. He accepted the issue, and met it by positive evidence that he had nothing to

property. We suppose the fact that he was present at the sale and participated in the fruits of the crime and incidental matters connected with the sale, as shown by Wilson's testimony, was to corroborate the accomplice Tiller. Tiller was not corroborated by any direct fact as to the taking. He himself placed the taking in such manner that no one but he and appellant were present, but shortly afterward he was with Tiller under the state's theory and assisted in the disposition of the property. In other words, he was in posseswith Tiller. This was a fact relied upon by sion of recently stolen property in connection the state to corroborate Tiller, and was proper testimony, and no objection was urged to its introduction. Appellant's objections were well taken. They were not introduced for

impeachment purposes. There was testimony of other indictments, and the verdict of a jury in another case introduced, and the court signs the bill with the qualification that these were admitted upon the question of identity. For this purpose they were not introducible. It is useless to discuss this further from

what has been said.

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[1] The statement of facts is wholly in question and answer form. The state has made a motion to strike it out and not consider it. Under the statutes and the many and uniform decisions of this court the state's motion must be granted. A great number of cases down to the present time could be cited, but we deem it unnecessary. We here cite some of them: Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Essary v. State, 53 Tex. Cr. R. 596, 111 S.

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