Ex Parte Day, 16359.

• Decision Date: 13 December 1933
• Docket Number: No. 16359.,16359.
• Citation: 66 S.W.2d 695
• Parties: Ex parte DAY.
• Court: Texas Court of Criminal Appeals

Page 695

66 S.W.2d 695

Ex parte DAY.

No. 16359.

Court of Criminal Appeals of Texas.

December 13, 1933.

Original application by Joe Day for a writ of habeas corpus to secure his discharge from custody of the constable of Precinct No. 3 of Travis County.

Application dismissed.

See, also, 66 S.W.(2d) 695.

Polk Shelton and Henry Brooks, both of Austin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Applicant presents an original application for a writ of habeas corpus to this court asking discharge from custody of the constable of precinct No. 3 of Travis county, because of the unconstitutionality of subdivision 23 of art. 7047, Rev. St. 1925, as amended by section 1 of chapter 212, Acts of Regular Session of 42d Legislature, as amended by section 11a of House Bill 154, being chapter 162, Acts of Regular Session of 43d Legislature (Vernon's Ann. Civ. St. art. 7047, subd. 23). An inspection of the affidavit to the complaint upon which applicant bases his illegal arrest, discloses the fact it is signed by one J. A. Woody, and apparently sworn to and subscribed before one T. E. Johnson, justice of the peace of precinct No. 3 of Travis county, Tex. Neither the affidavit nor the jurat bear any date. They are fatally defective, and cannot furnish any proper basis for an arrest, and certainly none for an application for a writ of habeas corpus. We might observe that in Ex parte Turner, 55 S.W.(2d) 833, this court held that the first statute referred to in applicant's application, to wit, that contained in section 1 of chapter 212, Acts of Regular Session of 42d Legislature (amending Rev. St. 1925, art. 7047, subd. 23), was unconstitutional. If the matter was properly before us for consideration, we would call attention to the further fact that the caption of House Bill 154, which is chapter 162, Acts of Regular Session of 43d Legislature, contains nothing in any way relating to or comprehending the enactment of what is section 11a of said chapter (Vernon's Ann. Civ. St. art. 7047, subd. 23). The caption sets out and comprehends the enactment of certain statutes. Section 11a is manifestly an amendment to a statute not referred to or comprehended by the caption. We would further observe, however, that the question of the constitutionality of the law herein attacked seems to be a moot question inasmuch as at the First Called Session of the 43d Legislature, an original act was passed, which, if valid, regulates...