Ex Parte Overstreet

• Decision Date: 18 December 1935
• Docket Number: No. 18193.,18193.
• Citation: 89 S.W.2d 1002
• Parties: Ex parte OVERSTREET.
• Court: Texas Court of Criminal Appeals

89 S.W.2d 1002

Ex parte OVERSTREET.

No. 18193.

Court of Criminal Appeals of Texas.

December 18, 1935.

Rehearing Denied January 29, 1936.

Appeal from District Court, Motley County; A. J. Folley, Judge.

Habeas corpus proceeding by Ben Overstreet. From an order remanding relator to custody, relator appeals.

Affirmed.

James A. Stephens, of Benjamin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Relator was charged by complaint, filed in the justice court of precinct No. 1 of Dickens county, with the offense of unlawfully keeping and exhibiting a gaming table, to wit, a marble table. Upon a hearing before the magistrate the accused was bound over in the sum of $500 to await the action of the grand jury, in the default of which he was committed to jail. He immediately applied to the judge of the district court of Motley county for a writ of habeas corpus, which was granted. At the conclusion of the hearing thereof, the judge made an order similar to that of the magistrate, to which relator excepted and gave notice of appeal to this court.

The instant case is similar to and involves the same legal questions as those presented in the case of Ex parte Meers et al., 88 S.W.(2d) 100, recently decided by this court. Hence, we do not deem it necessary to again enter upon a discussion thereof because reference to said case is deemed sufficient.

No question is raised as to the amount of the bond fixed by the court. Therefore, the order granting to relator bail in the sum of $500, in default of which he is committed to jail, is affirmed.

On Relator's Motion for a Rehearing.

HAWKINS, Judge.

In his motion for a rehearing, relator insists that we were in error in holding that he might not avail himself of the writ of habeas corpus to secure his release.

In the original opinion it was pointed out that relator was charged by complaint in the justice court of Dickens county with the offense of unlawfully keeping and exhibiting a gaming table, and that upon a hearing before the magistrate he was bound over to await the action of the grand jury. Failing to give bond in the sum of $500, he was committed to jail. Upon a hearing under a writ of habeas corpus issued by the district court of Motley county, he was remanded to custody.

Manifestly, relator is in the attitude of requesting this court to determine in advance of the return of an indictment and trial thereon that he is guilty of no offense. Article 619, P.C., in unambiguous language, penalizes one who keeps or exhibits for the purpose of gaming "any policy game, any gaming table, bank, wheel or device of any name or description whatever, or any table, bank, wheel or device for the purpose of gaming which has no name, or any slot machine, any pigeon hole table, any jenny-lind table, or table of any kind whatsoever, regardless of the name or whether named or not." Whether the marble table relator is alleged to have exhibited was a gaming table under the terms of article 619, supra, is a fact question to be determined upon a trial in the district court. We have consistently declined to permit the writ of habeas corpus to usurp the function of an appeal, and have uniformly held that the merits of a case involving the guilt or innocence of an accused is not a proper subject of inquiry in a habeas corpus...