Ex Parte Malone

• Decision Date: 18 December 1895
• Citation: 33 S.W. 360
• Parties: Ex parte MALONE.
• Court: Texas Court of Criminal Appeals

33 S.W. 360

Ex parte MALONE.

Court of Criminal Appeals of Texas.

December 18, 1895.

On rehearing. Motion overruled.

For prior report, see 31 S. W. 665.

HURT, P. J.

Appellant was arrested for violation of the local option law, and resorted to the writ of habeas corpus for his discharge. Upon the hearing he was remanded to custody; hence this appeal.

The judgment in this case was affirmed at the Austin term of this court. This was in consequence of the fact that we then held that we could not consider the statement of facts. It appears from the record that this cause was tried before the judge in chambers, and that he caused all the proceedings to be reduced to writing, and certified to the same, following article 182, Code Cr. Proc. The proceedings contained the statement of facts or the evidence received upon the trial. The question before us is this: Can this court consider the testimony contained in the proceedings, which proceedings have been properly authenticated by the judge who tried the cause, or must the statement of facts be made up and certified to, as in other cases? It is conceded that, if the statement of facts must be prepared and certified to as in other cases, then this has not been done. The contention of counsel for the motion is that, when all the proceedings are reduced to writing, and contain the evidence adduced on the trial, and are properly authenticated by the judge who hears the cause, that is all the law requires, and this court should consider the statement of facts therein contained. Does article 182, Code Cr. Proc., require that the testimony received upon the trial shall be made a part of the proceedings? If so, then we should consider the statement of facts therein contained. If not, then the statement should be made up, prepared, and authenticated as in ordinary cases. There are two articles bearing upon this subject, and, when construed together, we believe the difficulty will vanish. Article 181, Code Cr. Proc., provides: "If a writ of habeas corpus be made returnable before a court in session, all the proceedings had shall be entered of record by the clerk thereof." It is evident from what follows that the testimony constituted no part of the proceedings, because it proceeds: "as would be done in any other case pending in such court." Now, the clerk in any other case is required to enter the proceedings upon the record of the court. This has never been construed to mean that he must enter the testimony upon the record of the court; hence we conclude that the evidence received upon the trial constitutes no part of the proceedings, within the meaning of article 181, Code Cr. Proc. What, then, does article 182 mean? If the proceedings are had before the judge of a court in vacation, he must do or cause to be done just what the clerk is required to do in article 181, and no more. It is true, the law requires that he shall certify to the same, and cause them to be filed with the clerk of the court which has jurisdiction of the offense, whose duty it shall be to keep them safely. If the party desires to appeal, and the cause has been tried before a court in session, the record is made up by the clerk, and certified to by him, just as in any other case. If the cause be tried before a judge in vacation, the transcript may be prepared by any person under the direction of the judge, and certified to by such judge. Here, again, the question arises, what is meant by the "transcript"? We hold that it embraces the proceedings which have been reduced to writing, and properly authenticated, and a transcript of the statement of facts, if such is desired. This article proceeds upon the assumption that cases tried in vacation are, generally, without a clerk, but when tried in a court in session there is a clerk always present. Where the case is tried in vacation, the law expressly provides that the judge shall certify to the transcript. The clerk could not do this. But there must be a transcript. This can be obtained if an appeal is desired before the record is sent to the clerk of the proper court, or it may be obtained afterwards, but, in either event, the judge trying the case must certify thereto. If we are correct in holding that the evidence received upon the trial constitutes no part of the proceedings mentioned in article 182, then it follows that the statement of facts must be prepared and authenticated as in other cases. The motion for a rehearing is overruled.

HENDERSON, J. (dissenting).

Inasmuch as I do not agree to the views expressed by my brethren, and as the question is one of practice, I will state the reasons for my dissent. It appears that the original record (made up by the judge in this case who tried the same in chambers, and certified to by him) comes to us on appeal, and a majority of the court refuse to consider said record, as I understand it, because the statement of facts in said record was not prepared under the rule regulating the preparation of a statement of facts in a case tried in term time. So far as I am advised, the exact question here presented has not previously been before this court. In Cole's Case, 14 Tex. App. 579, and in Barber's Case, 16 Tex. App. 369, both of which were proceedings on habeas corpus, the applications were heard in term time, and in said cases the court say that the statement of facts appealed should have been made up as in ordinary cases. In Kramer's Case, 19 Tex. App. 123, the question was simply as to the mode of sending the transcript to the court of appeals. In Barrier's Case, 17 Tex. App. 585, which was also a proceeding on habeas corpus, the homicide which was the basis of the proceeding was committed in Morris county, and the...