Ex Parte Jarvis

• Decision Date: 15 February 1928
• Docket Number: (No. 11277.)
• Citation: 3 S.W.2d 84
• Parties: Ex parte JARVIS.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 84

Ex parte JARVIS.

(No. 11277.)

Court of Criminal Appeals of Texas.

February 15, 1928.

Original application for writ of habeas corpus by Jack Jarvis. Writ denied.

J. E. Newberry, and C. F. Greenwood, both of Dallas, for relator.

Claude Pollard, Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., and A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

By complaint and information in two counts relator was charged in the county court of McCulloch county with book-making and betting upon a horse race, which are denounced as offenses by articles 647 and 648 of the Penal Code 1925. He applied to this court for an original writ of habeas corpus, the only purpose of which is to test the sufficiency of the information to charge an offense. No attack is made upon the validity or constitutionality of the law upon which the prosecution is based. In the regular course of ordinary procedure, relator could have presented to the county court a motion to quash the information. The presumption is that the ruling of the presiding judge of that court would have been correct, and that, if in his judgment the information failed to charge an offense, he would have so held. If relator was not satisfied with the action of that court, he could come to this court by the statutory method of appeal for a review of the question.

We first take note of the authorities to which we are referred by relator as supporting his contention that the writ should issue. Ex parte Ballard, 87 Tex. Cr. R. 460, 223 S. W. 222, perhaps in principle supports relator's position, but in the later cases of Ex parte Garcia, 90 Tex. Cr. R. 287, 234 S. W. 892, and Ex parte Matthews, 96 Tex. Cr. R. 497, 258 S. W. 477, it was recognized that the Ballard Case was a departure from the well-established holding of this court, and we declined to follow it. In Ex parte McNamara, 33 Tex. Cr. R. 363, 26 S. W. 506, accused had been convicted in the city court, and appealed to the county court, where his appeal was dismissed on grounds other than the insufficiency of the appeal bond. The city court then tried to hold him upon the conviction from which he had appealed. No other remedy than resort to habeas corpus was available. This was also true as to one branch of Hoard's Case, 63 Tex. Cr. R. 519, 140 S. W. 449. In Hardcastle's Case, 84 Tex. Cr. R. 463, 208 S. W. 531, 2 A. L. R. 1539, there was no other remedy than the writ of habeas corpus. In Ex parte Stein, 61 Tex. Cr. R. 320, 135 S. W. 136, and Ex parte Jonischkies, 88 Tex. Cr. R. 574, 227 S. W. 952, the statutory remedy of appeal had been pursued as far as available. Kearby's Case, 35 Tex. Cr. R. 635, 34 S. W. 962; and Gould's Case, 60 Tex. Cr. R. 442, 132 S. W. 364, 31 L. R. A. (N. S.) 835, were contempt proceedings from which there was no appeal, and habeas corpus was the only remedy. In Ex parte Ogle (Tex. Cr. App.) 61 S. W. 122, and Ex parte Thompson, 57 Tex. Cr. R. 437, 123 S. W. 612, no remedy was available save that of habeas corpus. In Ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. 1101, 32 L. R. A. (N. S.) 1186, the distinguished judge who wrote the opinion recognized the general principle to which this court has long been committed in dealing with applications for writ of habeas corpus, but regarded that case as presenting an exception in that accused was charged with conducting a baseball game on Sunday; the contention being that no law existed forbidding it. In the present case the effort is to have this court declare in a habeas corpus proceeding that a particular information fails to charge the violation of a law, the existence of which is not questioned.

Whatever may be the rule in other jurisdictions it seems to be the settled policy in this state not to permit resort to habeas corpus proceedings primarily for the purpose of testing the sufficiency of a complaint or indictment in advance of a trial in the lower court. In Ex parte Oates, 91 Tex. Cr. R. 79, 238 S. W. 930, is found the following expression touching the principle which has controlled this court in such cases:

"It is the well-settled rule that the sufficiency of the complaint and indictment will not be inquired into upon habeas corpus unless it appear that the accused has exhausted his remedies by appeal, certiorari, etc., or that the law under which the prosecution is brought is for some reason invalid."

In Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936, it is said:

"The indictment having been presented in a court of competent jurisdiction by a grand jury regularly organized, and there being a law under which the prosecution may be maintained, an irregular or insufficient averment of the facts does not entitle the accused to release under a writ of habeas corpus. His remedy for such defect is to invoke the ruling of the trial court and present [complaint] to this court on appeal if the ruling is against him. Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637, and cases therein cited."

Similar expressions or holdings illustrative of the principle will be found in Ex parte Drane, 80 Tex. Cr. R. 543, 191 S. W. 1156; Ex parte Garcia, 90 Tex. Cr. R. 287, 234 S. W. 892; Ex parte Meggs, 99 Tex. Cr. R. 391, 269 S. W. 790; Ex parte Stanford, 100 Tex. Cr. R. 558, 271 S. W. 924; Ex parte Lovel, 101 Tex. Cr. R. 576, 276 S. W. 428; Ex parte Matthews, 96 Tex. Cr. R. 497, 258 S. W. 477; Ex parte Riddle, 90 Tex. Cr. R. 260, 236 S. W. 725; Ex parte Holland, 91 Tex. Cr. R. 339, 238 S. W. 654; Ex parte Vaughan, 93 Tex. Cr. R. 112, 246 S. W. 373. The latest expression from this court upon the subject will be found in Ex parte Evans (No. 11631) 4 S.W.(2d) 67, opinion delivered February 8, 1928. The principle controlling has not been of recent announcement, but will be found in many of the earlier cases with which this court has been called upon to deal. In Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645, and Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369, will be found a direct announcement that the writ of habeas corpus is not available to test the sufficiency of a...