Thomas v. State

• Decision Date: 01 January 1874
• Citation: 40 Tex. 6
• Parties: J. G. THOMAS v. THE STATE.
• Court: Texas Supreme Court

40 Tex. 6

J. G. THOMAS

v.THE STATE.

Supreme Court of Texas.

1874.

1. Appeal does not lie from the refusal of a district judge to grant a writ of habeas corpus.

2. See case held insufficient to authorize the district judge to admit to bail, under Pas. Dig. art. 2609, providing that a person in legal custody “may be admitted to bail when it appears that any species of confinement will endanger his life.”

APPEAL from Johnson. Tried below before the Hon. Charles Soward.

This is an appeal from an order refusing the writ of habeas corpus, on the application of Johnson, who was confined pending his appeal from a conviction for assault with intent to murder.

No brief filed for appellant.

Browne, for the state, cited Pas. Dig. art. 3185; Brill v. The State, 13 Tex.

REEVES, ASSOCIATE JUSTICE.

At the fall term, 1873, of the district court of Johnson county, the appellant was convicted of an assault to murder, and his punishment was assessed by the jury to confinement in the penitentiary for two years. The court made an order directing the sheriff to convey the defendant to the nearest jail for safe keeping, to await the action of the supreme court. Afterwards the defendant applied to Judge Soward for a writ of habeas corpus by petition, and which was filed twentieth of December, 1873. He sets forth in his petition that he is illegally restrained in his liberty by virtue of a commitment under the judgment of conviction, making it a part of the petition, and complains that he is in the hands of the sheriff and in confinement, and restrained in his liberty by the sheriff. A further ground for the writ, as shown by his petition, is that he is afflicted with a constitutional tendency to insanity, and that close confinement in jail or other prison, as advised by his physician, will develop the disease, and if persisted in will greatly endanger his health and his life. Attached to the petition are the affidavits of his physician and of other parties. He asks to be admitted to bail under article 2609 of the code.

The application for the writ was refused by the judge of the court, without reference to the exhibits accompanying the petition, on the ground, as stated in the order, that the defendant had been sentenced by the court to imprisonment in the penitentiary and notice of appeal given. From this ruling the applicant appeals.

The opinions of the court are not entirely uniform on the point whether a review of a decision on habeas corpus independently of statutory provisions can be had by appeal. The weight of authority seems to be that it cannot, and that an appeal does not lie, because the judgment is not final, and the party is not concluded from applying again. Hurd Habeas Corpus 566; Yarbrough v. The State, 2 Tex. 519

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