Ex Parte Strong

• Decision Date: 10 April 1895
• Parties: Ex parte STRONG.
• Court: Texas Court of Criminal Appeals

Page 666

30 S.W. 666

Ex parte STRONG.

Court of Criminal Appeals of Texas.

April 10, 1895.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Petition on the part of Nathan Strong for a writ of habeas corpus. From an order dismissing the writ, petitioner appeals. Dismissed.

A. W. Cunningham, for petitioner. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is an appeal from a proceeding on a writ of habeas corpus before the Honorable L. W. Goodrich, district judge of McLennan county. The petition is in the ordinary form of an application for a writ of habeas corpus, alleging that relator was illegally restrained of his liberty by John Baker, sheriff of said county. The county attorney further made answer that said relator was charged by the indictment of the grand jury of McLennan county under the name of Nathan Lancy, by which said last name the said Nathan Strong, the relator, is also called, with an aggravated assault and battery on one A. D. Cheeseburgh; that the relator and said Nathan Lancy are one and the same person, and he pleads to the jurisdiction of the district judge to try same, because, he said, the indictment was pending in the county court of said McLennan county, which had jurisdiction of said offense, and he asked that said habeas corpus proceedings be dismissed. On said motion the judge dismissed the writ, and remanded relator to the custody of the sheriff. No evidence was heard in said cause, and there is no statement of facts before us, but, from the order of the judge dismissing said cause, the relator prosecutes this appeal. In our opinion, it does not follow that because the county had jurisdiction of said cause the district judge did not have jurisdiction to grant the writ and try the same. Section 8, art. 5, of the constitution of 1876, as amended by the judiciary article of 1891, authorizes district judges to grant writs of habeas corpus in all cases. Legate v. Legate (Tex. Sup.) 28 S. W. 281. Inasmuch, however, as the district judge did not try said cause, but dismissed the writ, which, in our opinion, was tantamount to a refusal to grant the writ in the first instance, this court has no appellate jurisdiction of the case. As was said in Ex parte Ainsworth, 27 Tex. 732: "Such appellate jurisdiction only exists after hearing upon the facts and law arising upon the record, and not where the appeal is from a refusal to grant the writ. The denial of the writ by one judge is not conclusive...