Ex Parte Muse

• Decision Date: 10 June 1914
• Docket Number: (No. 3183.)
• Parties: Ex parte MUSE.
• Court: Texas Court of Criminal Appeals

168 S.W. 520

Ex parte MUSE.

(No. 3183.)

Court of Criminal Appeals of Texas.

June 10, 1914.

On Motion for Rehearing, June 24, 1914.

Appeal from District Court, Cooke County; C. F. Spencer, Judge.

Habeas corpus by L. D. Muse. From a judgment remanding the relator to the custody of the sheriff, the relator appeals. Affirmed on rehearing.

J. T. Adams, of Gainesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

On May 2, 1914, the grand jury of Cooke county duly indicted said Muse for a felony. On the same date the clerk issued the proper capias on said indictment under which the sheriff of Cooke county duly arrested and held said Muse. On May 27th appellant petitioned the district judge of Cooke county for a writ of habeas corpus, alleging the said indictment, capias, and that he was held by the sheriff thereunder, merely alleging that he was illegally restrained of his liberty and confined in the county jail of Cooke county by the sheriff. The judge at no time granted the writ, but the sheriff, in response to Muse's petition for the writ, waived time, etc., and brought his prisoner before the district judge showing the said authority for his holding him. The judge heard evidence on Muse's petition and held that he was legally held in custody and under restraint by the sheriff, and denied his writ of habeas corpus and remanded him to the custody of the sheriff, from which action by the judge appellant gave notice of appeal and has attempted to appeal.

An appeal from such action does not lie, and this court has no jurisdiction thereof. Ex Parte Thomas, 61 Tex. Cr. R. 573, 136 S. W. 60.

This case is therefore dismissed.

On Motion for Rehearing.

Appellant has made a motion for rehearing. He accompanies it with proper certified copies which were omitted in the transcript when we acted on the case originally, showing that the court below did grant the writ of habeas corpus applied for, and heard the evidence and tried the case regularly so far as it could be heard and tried under a writ of habeas corpus. The former judgment herein entered dismissing this cause is therefore set aside, the rehearing granted, and we now pass upon the merits of the case, so far as we are authorized to do in this proceeding.

Appellant was regularly indicted by the grand jury of Cooke county under the act of August 21, 1913, p. 62, known as the Allison Law. The indictment contains two counts. Both properly allege that the law prohibiting the sale of intoxicating liquors in Cooke county had been duly voted upon, prohibition carried, proper orders, publication, etc., made so that the prohibition law was in force in said county at the time the offense in this case is alleged to have been committed.

The first count is under section 2 of said act, which, so far as this offense applies to appellant is concerned, is:

"It shall be unlawful for any person * * * in this state to deliver to any other person * * * any intoxicating liquor for shipment, transportation, carriage or delivery within this state."

The first count avers that on April 26, 1914, appellant in said state and county "did unlawfully deliver to Bill Young intoxicating liquor for...