Ex Parte Drenner

• Decision Date: 17 January 1934
• Docket Number: No. 16548.,16548.
• Citation: 67 S.W.2d 870
• Parties: Ex parte DRENNER.
• Court: Texas Court of Criminal Appeals

67 S.W.2d 870

Ex parte DRENNER.

No. 16548.

Court of Criminal Appeals of Texas.

January 17, 1934.

Rehearing Denied February 14, 1934.

Commissioners' Decision.

Appeal from Travis County Court; Roy C. Archer, Judge.

Application by Robert Drenner for habeas corpus. From an order remanding him, applicant appeals.

Affirmed.

Moody & Robertson, Dan Moody, and J. B. Robertson, all of Austin, for appellant.

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

CHRISTIAN, Judge.

By way of habeas corpus appellant sought release from jail. He appeals from an order remanding him.

The warrant of arrest was based on a complaint charging that appellant had violated the provisions of chapter 226 of the General Laws enacted at the Regular Session of the 43d Legislature 1933 (Vernon's Ann. P. C. art. 1066a), being Senate Bill 504. We quote section 1 of the act as follows: "Whoever assembles or rebuilds an electric storage battery for use on automobiles, in whole or in part, out of second hand or used material, such as containers, separators, plates, groups or other battery parts, and sells same or offers same for sale within this State without the word `rebuilt' branded into the side of the containers in letters which are at least one inch high and one-half inch wide, each, shall be guilty of a misdemeanor, and upon conviction therefor, shall be punished by a fine not exceeding One Hundred ($100.00) Dollars or by imprisonment not exceeding thirty (30) days, or by both such fine and imprisonment."

The charging part of the complaint reads: "That heretofore, to-wit, on or about the tenth day of November, A. D. 1933, and before the making and filing of this complaint, in the County of Travis and State of Texas, Robert Drenner did then and there unlawfully assemble and rebuild an electric storage battery for use in automobiles in part out of used material in that the said Robert Drenner did then and there separate the metallic parts of used storage battery plates from the other material thereof and did then and there mix such metallic parts with other similar metal and melt such metallic parts and metal and cast therewith skeleton forms of storage battery plates, and did then and there pulverize the filling material from used battery plates and mix such pulverized filling material with a chemical solution into a paste and did then and there apply such paste to said skeleton forms of storage battery plates and did then and there assemble a storage battery for use in automobiles by using such plates so made by him with new parts and new material and did then and there offer said battery for sale within Travis County in the State of Texas without the word `rebuilt' having been branded into the side of the container in letters which are at least one inch high and one-half inch wide. * * *"

No attack appears to be made upon the validity or constitutionality of the statute upon which the complaint is based. Touching his purpose in resorting to the writ of habeas corpus, we quote from appellant's brief, as follows: "These propositions present the question as to whether Senate Bill 504 which was evidently intended to cover only the branding of batteries made partly with used parts can properly be construed so as to make it apply to a battery that has been made altogether with new parts, some of which have been made with material taken from previously used similar parts. In other words, is a battery part that has been newly made out of material taken from a used battery, itself a used part or not?"

An examination of the original record in the case of Ex parte Jarvis, 109 Tex. Cr. 52, 3 S.W.(2d) 84, 57 A. L. R. 82, discloses that the complaint and information set out in detail the acts alleged to constitute a violation of the provisions of articles 647 and 648, P. C., denouncing bookmaking and betting on horse races. An agreed statement of facts supported the allegations of the complaint and information. It was contended that the averments in the complaint and information manifested the acts not to be within the purview of the statute. In denying the writ of habeas corpus, we reviewed numerous decisions of this court. The conclusion was reached that the record showed an effort on the part of Jarvis to resort to habeas corpus proceedings primarily for the purpose of testing the sufficiency of the complaint and information. In the course of the opinion Judge Hawkins, speaking for the court, used language as follows: "No attack is made upon the validity or constitutionality of the law upon which the...