Ex Parte Wolf

• Decision Date: 03 February 1909
• Parties: Ex parte WOLF.
• Court: Texas Court of Criminal Appeals

115 S.W. 1192

Ex parte WOLF.

Court of Criminal Appeals of Texas.

February 3, 1909.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Application by Joe Wolf for a writ of habeas corpus. Relator was remanded to custody, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Relator applied to the district court of the Sixty-Seventh judicial district for a writ of habeas corpus. Upon hearing of his application he was remanded to custody. The facts show that relator was convicted in the district court of Tarrant county of the offense of robbery by the use of firearms, and his punishment assessed at 40 years' confinement in the penitentiary. After relator had been carried to the penitentiary on said judgment, he sued out this writ of habeas corpus, on the ground that the indictment is void, and therefore entitled relator to release.

The charging part of the indictment is as follows: "* * * That one Joe Wolf, in the county of Tarrant and state aforesaid, on the 16th day of January, in the year of our Lord one thousand nine hundred and five, did then and there unlawfully and willfully make an assault upon the person of J. P. Gillean, and then and there by said assault and by violence to the said J. P. Gillean, and putting the said J. P. Gillean in fear of life and bodily injury, and then and there using and exhibiting a firearm, to wit, a pistol, and did then and there fraudulently take from the person and possession, and without the consent, and against the will, of the said J. P. Gillean, sixty dollars in money, of the value of sixty dollars, and three rings, of the value of three dollars each; the said property then and there being the corporeal personal property of the said J. P. Gillean, with the fraudulent intent then and there of him, the said Joe Wolf, to deprive the said J. P. Gillean of the value of the same, and to appropriate the same to the use and benefit of him, the said Joe Wolf," etc. Relator insists that the above indictment charges two distinct offenses in the same count, to wit, robbery by assault or violence, or by putting one in fear of his life or bodily harm, and robbery by the use and means of firearms.

We hold that the writ of habeas corpus cannot be used to test the validity of an indictment, unless same is void; and the judgment of the lower court is in all things affirmed.