Ex parte Valasquez

• Decision Date: 01 January 1862
• Citation: 26 Tex. 178
• Parties: EX PARTE JOHN VALASQUEZ.
• Court: Texas Supreme Court

26 Tex. 178

EX PARTE JOHN VALASQUEZ.

Supreme Court of Texas.

1862.

A justice of the peace has no jurisdiction to finally try and impose a penalty upon a party charged with the offense of selling spirituous liquors without having obtained license, but his jurisdiction is confined to examining and holding him to bail to answer to indictment or information to be preferred in the district court.

The power of final trial in such cases was conferred upon justices of the peace, by the 5th and 6th sections of the act of February, 1856(O. & W. Dig. arts. 1757, 1758), but both these sections were superseded and repealed by articles 423d and 423e of the Penal Code.O. & W. Dig.p. 509.[8 Tex. 62;20 Id. 355.]

Tried before the supreme court sitting at Galveston.

On the 5th day of March, 1862, John Valasquez, the applicant, was tried before a justice of the peace of Harris county for selling spirituous liquors without having obtained license therefor; fined fifty dollars and adjudged to be committed to the jail of said county until the fine was paid.Writ issued to the sheriff of Harris county by the justice of the peace in accordance with his judgment.Sheriff took applicant into his custody.To be released from this restraint he applied to the supreme court for his writ of habeas corpus, which was granted.

Cone and Goldthwaite, for applicant.

WHEELER, C. J.

The question presented for our decision by this applicant is, whether the justice had jurisdiction finally to try the accused and impose the penalty annexed to the offense upon conviction, or jurisdiction only to examine and hold to bail, to answer to an indictment or information to be preferred in the district court.

We are of opinion that the jurisdiction of the justice was the latter; that is, that of an examining court only, and that he had not the power to try and convict finally of the offense.

The power of final trial was conferred upon justices of the peace by the 5th section of the act of the 2d of February, 1856.O. & W. Dig. arts. 1757, 1758.But we think it quite clear that both the 5th and 6th sections of that article were superseded and repealed by articles 423d and 423e of the amendments to the Penal Code adopted by the act of the 12th of February, 1858, acts of 7th legislature, pp. 167, 168.The latter statute was evidently intended to that extent, as a substitute for and to supersede the former, and on general principles, must be held to operate a repeal.Rogers v. Watrous, 8 Tex. 62;Cain v. The...