Ex parte Ainsworth

Citation27 Tex. 731
PartiesEX PARTE J. W. AINSWORTH.
Decision Date01 January 1865
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

An appeal may be taken by the applicant where the court or judge has decided against the application for a writ of habeas corpus, that is, after a trial; but the statute makes no provision for an appeal, if the writ be denied.

If the grounds disclosed, on an application for a writ of habeas corpus, are sufficient, the action of this court in dismissing the appeal is not conclusive. It is only so after a hearing in the court below, upon the facts and law arising upon the record, and not when the appeal is from the refusal to grant the writ.

After indictment, as in article 125, Code of Criminal Procedure, application for the writ must be made to the judge of the district in which the indictment was found.

The writ of habeas corpus is one of right, but it is not grantable of course; and cause must be shown, supported by oath, in accordance with the statute. If it be apparent that the applicant is not entitled to any relief, the judge may refuse to award the writ, and his action cannot be revised on appeal.

Under our statute, the writ ought not to be refused, except in a clear case.

APPEAL from Trinity. Tried below before the Hon. C. L. Cleveland.

The facts appear in the opinion.

J. W. Ainsworth, for himself.

Attorney General, contra.

REEVES, J.

This was a proceeding before the district court of Trinity county. The petition charges that the relator, who was in the military service of the Confederate States, had furnished a substitute, fifty-one years old, who was accepted. That after his discharge he was held in the service and thereby illegally restrained of his liberty. The record recites that the court refused to grant the writ on the ground that the petition did not disclose any fact sufficient to entitle the applicant to the writ. A motion for a new trial having been overruled, the relator prosecutes this appeal.

By the Code of Criminal Procedure, article 122, “the supreme court or either of the judges, the district court or either of the judges, have power to issue the writ of habeas corpus, and it is their duty, upon proper application, to grant the writ under the rules herein prescribed.” By article 131, “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 document annexed to it, that the party is entitled to no relief whatever.”

The question in this case is, whether an appeal will lie from the refusal of the district court to grant the writ.

An appeal may be taken by the applicant where the court or judge has decided against the application under habeas corpus, that is, after a trial; but the statute makes no provision for an appeal if the writ be denied. (Code Criminal Procedure, art. 719.)

If the grounds disclosed were...

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15 cases
  • Miskimmins v. Shaver
    • United States
    • Wyoming Supreme Court
    • September 18, 1899
    ...Sec. 1264; 30 A. 910; 2 Cal. 242; 28 id., 248; 32 Ill. 446; 93 id., 89; 9 Ill.App. 523; 3 S.W. 631; 8 Wall., 85; 30 S.W. 666; 40 Tex. 6; 27 Tex. 731; 19 So. 652; 20 Fla. 17; 33 957; 35 id., 23; 57 Ill.App. 505.) It is the province of the court to judge whether any direct answers to the ques......
  • In re Piper
    • United States
    • Texas Court of Appeals
    • April 2, 2003
    ...for he may apply to another and have the opinion of one or all of the judges as to the legality of his restraint." Ex parte Ainsworth, 27 Tex. 731, 732 (1865); accord Hargett, 819 S.W.2d at 868; Chavfull, 945 S.W.2d at 185. The Code of Criminal Procedure provides that after an indictment is......
  • Ex Parte Patterson
    • United States
    • Texas Court of Criminal Appeals
    • May 1, 1940
    ...have made the same returnable to the district court of Walker County. See Ex parte Trader, 24 Tex.Cr.App. 393, 6 S.W. 533; Ex parte Ainsworth, 27 Tex. 731; Ex parte Springfield, 28 Tex.Cr.App. 27, 11 S.W. 677; Ex parte Overcash, 65 Tex.Cr.R. 67, 134 S.W. 700; Ex parte Andrus, 69 Tex. Cr.R. ......
  • Ex Parte Smith
    • United States
    • Texas Court of Criminal Appeals
    • October 15, 1919
    ...refusal to grant a writ of habeas corpus. Ex parte Copley, 69 Tex. Cr. R. 253, 153 S. W. 325; McFarland v. Johnson, 27 Tex. 105; Ex parte Ainsworth, 27 Tex. 731; Dirks v. State, 33 Tex. 227; Thomas v. State, 40 Tex. 6; Ex parte Barnett, 74 Tex. Cr. R. 136, 167 S. W. 845; Ex parte Muse, 74 T......
  • Request a trial to view additional results

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