Ex Parte Meers, 17901.

• Decision Date: 16 October 1935
• Docket Number: No. 17901.,17901.
• Parties: Ex parte MEERS et al.
• Court: Texas Court of Criminal Appeals

88 S.W.2d 100

Ex parte MEERS et al.

No. 17901.

Court of Criminal Appeals of Texas.

October 16, 1935.

Rehearing Denied December 4, 1935.

Commissioners' Decision.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Application for writ of habeas corpus by R. E. Meers and Scott King. From an order remanding applicants, they appeal.

Affirmed.

William J. Gerron, of Brady, for appellants.

A. O. Newman, Dist. Atty., of Coleman, I. J. Burns, Co. Atty., of Brady, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

It appears from the record before us that relators were charged by complaint filed in the justice court of precinct No. 1 of McCulloch county, with the offense of unlawfully keeping and exhibiting a gaming table and bank, to wit, a marble table. Upon a hearing before the justice of the peace, who was sitting as a magistrate, relators were ordered to give bond in the sum of $500 each for their personal appearance before the district court of said county, to be begun and holden on the first Monday in October, 1935, the same being the 7th day of October, 1935, to await the action of the grand jury, but in default of giving bond they be committed to jail. Thereafter they applied to the Honorable E. J. Miller, judge of the Thirty-Fifth judicial district of Texas, for a writ of habeas corpus by which they sought their release from custody. Upon a hearing, the judge made a similar order as that of the magistrate, to which they excepted and appealed to this court.

This court has consistently held that a writ of habeas corpus will not lie where the remedy at law is adequate, nor will it lie after indictment to prevent a trial on the merits. See Branch's Texas P.C., Sec. 239; Ex parte Kent, 49 Tex.Cr.R. 12, 90 S.W. 168; Ex parte Adams (Tex.Cr.App.) 90 S.W. 24; Ex parte Windsor (Tex.Cr. App.) 78 S.W. 510; Ex parte Jennings, 76 Tex.Cr.R. 116, 172 S.W. 1143; Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.(2d) 84, 57 A.L.R. 82. Relators had not been tried; they had not even been indicted by the grand jury for the offense for which they were charged by complaint, yet they are seeking by means of a writ of habeas corpus to have this court determine in advance of a trial in a court of competent jurisdiction, whether the facts developed at the hearing show them guilty of an offense against the law of this state. Should relators be charged by indictment with said offense, and on trial the evidence is not sufficient to show that an offense has been committed, the trial court will no doubt so decide. If not, then relators have the legal right to appeal to this court. In the case of Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.(2d) 870, this court said: "The merits of a case on the sufficiency of the evidence to show a violation of the law is not the subject of inquiry by writ of habeas corpus." Relators contend, however, that there is no statute which denounces their act and the operation of their marble table as an offense. Looking to the entire record, it appears to us that relators, under the guise of questioning the validity of article 619, P.C., under which they are charged with the offense of unlawfully keeping and exhibiting a gaming table, to wit, a marble table, are in fact questioning the sufficiency of the facts to bring their act and the marble table within the purview of said article. We...