Ex Parte Blankenship

• Decision Date: 16 May 1900
• Parties: Ex parte BLANKENSHIP.
• Court: Texas Court of Criminal Appeals

57 S.W. 646

Ex parte BLANKENSHIP.

Court of Criminal Appeals of Texas.

May 16, 1900.

Appeal from district court, Nacogdoches county; Tom C. Davis, Judge.

Habeas corpus by C. Blankenship for discharge from confinement on a conviction for breach of the peace. From an order dismissing the petition, petitioner appeals. Dismissed.

Blount & Garrison, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is an appeal from a proceeding by habeas corpus. It appears from the petition that some sort of an affidavit was made against C. Blankenship, applicant in this writ, charging that he made threats against one A. P. Stevens and E. B. Blankenship. The threats, however, as presented, are of a very ambiguous character. On this complaint applicant appears to have been tried before one J. C. Fall, justice of the peace, and by him required to enter into a peace bond in the sum of $500, and to pay the costs of the proceeding; and, in default of a compliance with its said judgment by giving bond and paying the costs, he was sent to jail. He applied in September, 1899, to the Honorable Tom C. Davis, district judge, for the writ of habeas corpus. The judge appears to have granted the writ, and made it returnable before him on the 19th of September, 1899. The cause was postponed on some account, and the judge made no order in the case until the 21st of April, 1900. The case then appears to have been filed in the district court, and the county attorney made a motion to dismiss the proceeding on various grounds: (1) Because defendant, Blankenship, is held by virtue of a complaint issued by J. C. Fall, justice of the peace in and for Nacogdoches county; (2) that said court is of competent jurisdiction over the offense in which said judgment was rendered; (3) that the writ of habeas corpus is not the remedy in this case; (4) that the application is insufficient to entitle applicant to a writ of habeas corpus. On this motion the judge made his order dismissing the case, and from the order of dismissal appellant excepted, and gave notice of appeal to the court of criminal appeals.

In regard to this proceeding we would observe that there is no certificate of the judge to the proceeding, as is required in Ex parte Malone, 35 Tex. Cr. R. 297, 31 S. W. 665, 33 S. W. 360. This case, after having been granted by the judge in chambers, found its way into the district court; and, if it was properly there, the certificate of the clerk is sufficient. The judge, however, did not take cognizance of the case, but dismissed it. This has been held tantamount to a refusal of the court to grant...