Ex Parte Lovel

• Decision Date: 21 October 1925
• Docket Number: (No. 9500.)
• Citation: 276 S.W. 428
• Parties: Ex parte LOVEL.
• Court: Texas Court of Criminal Appeals

276 S.W. 428

Ex parte LOVEL.

(No. 9500.)

Court of Criminal Appeals of Texas.

October 21, 1925.

Commissioners' Decision.

Habeas corpus by B. L. Lovel to secure his release from the penitentiary after conviction for murder. Writ refused.

Lamar Bethea, of Bryan, for appellant.

Sam D. Stinson, State's Atty., of Greenville, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

This is an original application for the writ of habeas corpus.

On the 27th day of April, 1922, the applicant herein was by proper judgment of the district court of Ellis county sentenced to the penitentiary for a term of 25 years, for the offense of murder, wherein the indictment charged that on or about the 27th day of October, 1921, appellant killed J. N. Hale. This indictment was returned by the grand jury of Ellis county on the 12th day of January, A. D. 1922.

The applicant contends that as the indictment charged that the offense was committed on the 27th day of October, 1921, and, as the proof showed that the offense was actually committed on the 27th day of September, 1921, if committed at all, and as the proof showed that applicant was in jail on the 27th day of October, 1921, that the indictment therefore charged an impossible date, and that be is entitled to be released. As we gather from the application, it is the applicant's contention that, where the indictment charges an offense to have been committed on the 27th day of October, it will not be permissible for the state to prove that the offense was actually committed at any other time than the exact date alleged in the indictment.

There is no merit in applicant's contention. "The state is not bound by the date alleged, and may prove that the offense was committed before, on, or after the date alleged, if the date proven be a date anterior to the presentment of the indictment, and not so remote as to be barred by limitation." See section 439, Branch's P. C., for full citation of authorities sustaining this proposition.

This case might well have been disposed of on the theory that the writ of habeas corpus was not the appellant's proper remedy. It is well settled by the authorities that a writ of habeas corpus cannot serve the office of an appeal. Ex parte Beland, 94 Tex. Cr. R. 614, 252 S. W. 529; Ex parte Stanford (Tex. Cr. App.) 271 S. W. 924.

There being no merit in the applicant's contention, it is the order of this court that the writ of habeas corpus should be refused.

PER CURIAM...