Ex Parte Minus
| Decision Date | 08 April 1931 |
| Docket Number | No. 14292.,14292. |
| Citation | 37 S.W.2d 1040 |
| Parties | Ex parte MINUS. |
| Court | Texas Court of Criminal Appeals |
Appeal from Dimmit County Court; E. L. O'Meara, Judge.
Application of J. C. Minus for writ of habeas corpus. From order refusing to discharge defendant, he appeals.
Appeal dismissed.
Bruce W. Teagarden, of San Antonio, and Joe W. Caldwell, Jr., of Asherton, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
This is an appeal from the refusal to discharge the appellant upon a writ of habeas corpus.
The arrest was upon a complaint under article 923d, P. C. 1925, which reads as follows: "The Commissioner or any of his deputies shall have the right to search the game bag or any other receptacle of any kind whenever such Commissioner or his deputy has reason to suspect that such game bag, or other receptacle or any buggy, wagon, automobile or other vehicle may contain game unlawfully killed or taken, and any person who refuses to permit the searching of the same, or who refuses to stop such vehicle when requested to do so by the Commissioner or his deputy, shall be fined not less than ten nor more than one hundred dollars."
The relator is on bail pending the appeal.
There was filed in this cause on the 26th of March, 1931, a certified copy of a motion by the county attorney to dismiss the prosecution in the trial court, also a certified copy of the order of the justice of the peace granting the motion to dismiss the case. The appellant has filed his opposition to the dismissal of the appeal pending in this court. The authority of the prosecuting officer to dismiss pending cases in the trial court with the consent of the presiding judge is declared by article 577, C. C. P. 1925. The precedents under the statute are uniform to the effect that the dismissal of the prosecution with the consent of the presiding judge is conclusive. See Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 435, and other cases collated in Vernon's Ann. Tex. C. C. P. 1925, vol. 1, p. 501. See, also, Ryan v. State, 81 Tex. Cr. R. 632, 198 S. W. 582.
It has often been held that an appeal in a habeas corpus matter will be dismissed, where it appeared that the applicant was not in custody. See Branch's Ann. Tex. P. C. § 240, and authorities cited, including Ex parte Peyton, 2 Tex. App. 295, and many others. The precedents cited deal with the law as it stood prior to the enactment of chapter 43, Acts of 40th Leg. (1927), Regular Session, ...
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...and there is no longer any legal authority to detain the accused in custody. Venters v. State, 1885, 18 Tex.App. 198; Ex parte Minus, 1931, 118 Tex.Cr.R. 170, 37 S. W.2d 1040. Appellees' reliance upon the arrest warrant and the indictments is thus 11 See Vernon's Ann.Tex.Rev.Civ.Stat. Art. ......
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...conclusively ousts the trial court of jurisdiction. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex.Cr.App.1980); Ex Parte Minus, 118 Tex.Cr.R. 170, 37 S.W.2d 1040 (1931). A subsequent order purporting either to reinstate the cause or enter judgment thereon is void ab initio, Garcia at 528; Ex Par......
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...Worth 2000, no pet.) (per curiam) (citing Workman v. State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961)); cf. Ex parte Minus, 37 S.W.2d 1040, 1040 (Tex. Crim. App. 1931) ("[T]he dismissal of the prosecution with the consent of the presiding judge is conclusive. . . . [T]he effect of such dis......
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Ex parte Shapiro, 24956
...on account of the question of the relator's detention having become moot, he should be ordered discharged herein. See Ex parte Minus, 118 Tex.Cr.R. 170, 37 S.W.2d 1040. Relator in his brief suggests that because of his having given notice of appeal in this habeas corpus case, therefore the ......