Ex Parte Overcash

• Decision Date: 08 February 1911
• Citation: 134 S.W. 700
• Parties: Ex parte OVERCASH.
• Court: Texas Court of Criminal Appeals

134 S.W. 700

Ex parte OVERCASH.

Court of Criminal Appeals of Texas.

February 8, 1911.

Appeal from District Court, Jones County; John B. Thomas, Judge.

Proceeding by habeas corpus by W. J. Overcash for bail. From an adverse judgment, applicant appeals. Judgment set aside, and writ ordered to be made returnable in another county.

J. F. Cunningham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Applicant was indicted in Throckmorton county for murder. The case was transferred, on change of venue, to Haskell county. The trial under the writ of habeas corpus was had in Jones county. Upon a hearing, applicant was remanded to custody without bond.

Motion is made in this court to dismiss the appeal, because the hearing under the writ was unauthorized in Jones county. Under our statute, after indictment is found, application for bail under writ of habeas corpus must be had in the county in which the indictment was found. This question has been several times before this court. See Ex parte Trader, 24 Tex. App. 393, 6 S. W. 533; Ex parte Springfield, 28 Tex. App. 27, 11 S. W. 677; Ex parte Graham, 64 S. W. 932. The matter was also discussed to some extent in Ex parte Angus, 28 Tex. App. 293, 12 S. W. 1099. Under the statute, and the decisions construing that statute, requiring the application for bail after indictment found to be heard in the county where the homicide occurred, the case must be tried in the county where the indictment was found. The judge who granted the writ of habeas corpus in this case was authorized to grant it, as any district judge in the state would be authorized to do; but he is not authorized to hear it in any other county than Throckmorton. We therefore hold, under the facts of the case and as this record presents the matter, that the writ was properly granted, but the case was improperly tried in Jones county, and that the writ should have been made returnable to Throckmorton county, before the district judge of the district in which Throckmorton county is situated.

It is therefore ordered that the judgment be set aside, and it is ordered that the writ of habeas corpus be made returnable before the district judge in Throckmorton county, to be there heard and decided.