Ex Parte Cox

• Decision Date: 18 March 1908
• Citation: 109 S.W. 369
• Parties: Ex parte COX.
• Court: Texas Court of Criminal Appeals

Page 369

109 S.W. 369

Ex parte COX.

Court of Criminal Appeals of Texas.

March 18, 1908.

Application by R. M. Cox for writ of habeas corpus to secure relator's discharge from custody. Writ denied, and relator remanded to custody.

L. W. Campbell, J. A. Kibler, J. P. Word, and Cureton & Cureton, for appellant. E. B. Roberson, County Atty., and F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an original application for habeas corpus filed in this court.

The relator raises some interesting questions, and has sought to sustain his contention in a brief showing great learning, and on oral argument supported same with much plausibility. We think, however, after careful investigation, that as presented relator's position cannot be sustained. The brief filed in the case by counsel for respondent contains a statement of the facts, and such a clear enunciation of the law (eliminating some incidental matters not necessary to be considered) that we adopt it as the opinion of the court. It is as follows:

"The historical facts preceding, and out of which these proceedings grew, are as follows: The applicant, R. M. Cox, was charged by complaint filed in the justice court of precinct No. 2 of Bosque county with the offense of having unlawfully entered upon the inclosed lands of one Woody, without his consent, and which comprised less than 2,000 acres, and therein hunted with firearms, etc. The case was tried in the justice court, where applicant was duly convicted, and appealed the case to the county court of Bosque county, where he was again tried and convicted and his punishment assessed at a fine of $10 and costs. The county court being a court of general jurisdiction in misdemeanor cases, its judgments cannot be collaterally attacked, and the writ of habeas corpus is not available for that purpose. See Ex parte Call, 2 Tex. App. 497; Ex parte Scwartz, 2 Tex. App. 74; Ex parte McGill, 6 Tex. App. 498; Ex parte Boland, 11 Tex. App. 159; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076; Ex parte Branch, 36 Tex. Cr. R. 384, 37 S. W. 421. It is only in cases where the judgment is absolutely void that the writ is available, and not in cases where such judgment is voidable. Errors committed on the trial of the case do not render the judgment void. If the court had jurisdiction, the judgment is not void. The writ of habeas corpus is not available as a means of effecting the purposes of an appeal, certiorari, or supersedeas. Perry v. State, 41 Tex. 488; Darrah v. Westerlage, 44 Tex. 388; Ex parte Scwartz, 2 Tex. App. 74; Ex parte Oliver, 3 Tex. App. 345; Ex parte Slaren, 3 Tex. App. 662; Ex parte Mabry, 5 Tex. App. 93; Griffin v. State, 5 Tex. App. 457; Ex parte McGill, 6 Tex. App. 498; Ex parte Boland, 11 Tex. App. 159; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076; Milliken v. City Council, 54 Tex. 392, 38 Am. Rep. 629. The writ is not available to test the sufficiency of a complaint. Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645. Now with regard to the case on its merits it will be contended that Acts 1903 (28th Leg.) p. 159, c. 103, is void, because of the fact that it purports by its caption to be an amendment to article 804 of the Penal Code of 1895, and it is claimed that there was then no such article as 804. The first act on this subject was the act of March 31, 1885 (Laws 1885, p. 80, c. 85), which made it an offense to enter upon the inclosed and posted lands of another, without his consent, and therein hunt with firearms, etc. The second section of this act defined posting, and provided how it should be done. The next act was passed by the Twenty-Third Legislature in 1893, May 1st (p. 87, c. 67), and provided and made it an offense to enter upon the inclosed lands of another, without his consent, and therein hunt, etc. This act contained a number of provisos, and was amendment to act of 1885. The next act was the codification of the statutes in 1895. In this codification the act of 1885 was brought forward and re-enacted. The next act was in 1903. Acts 28th Leg. p. 159, c. 103. This act was an amendment to article 804 of the Penal Code of 1895, and made it an offense to enter the inclosed lands of another and hunt, etc. The contention is that, as the act of 1903 is an amendment to article 804 of the Penal Code of 1895, and that article is a copy of the act of 1885, which...