Ex Parte Kramer

Citations

• 19 Tex. Ct. App. 123
• 1885 Tex. Crim. App. LEXIS 171

Syllabus

<p>1. Habeas Corpus — Appeal—Case Stated.— Applicant was arrested upon a warrant issued by a justice of the peace, upon a complaint charging him with the violation of the local option law. He applied to the county judge for the writ of habeas corpus, which was granted, but upon the hearing of the same the county judge remanded the applicant to the custody of the officer, and the applicant appeals. The assistant attorney-general moves to dismiss the appeal, because, 1. The justice of the peace had acquired jurisdiction of the case, and also of the person of the applicant, and therefore the county judge could not interfere by the writ of habeas corpus, and, the county court having no jurisdiction, this court acquired none by the appeal, 3. Because it does not appear from the record that the applicant is in actual custody or restrained of his liberty. 3. Because the record has not been sent to this court in the manner required by law. The motion to dismiss the appeal is overruled because the writ of habeas corpus was fully authorized by articles 139 and 195 of the Code of Criminal Procedure. Held, further, that as the record shows the remand of applicant to the custody of the officer, the presumption obtains that he is held in custody by said officer in obedience to the order. And, further, that the rules governing the transmission of transcripts to this court, on appeals in other criminal cases, do not govern in habeas corpus appeals; such appeals being specially provided for and regulated, and no particular mode being prescribed for bringing the transcripts before this court. (Code Grim. Proc., art. 881.)</p> <p>2. Same—Local Option Law.—Inasmuch as an election under the local option law which was not conducted in accordance with the requirements of the law is absolutely void, rendering absolutely void every proceeding had thereunder, the legality of the same may be questioned not only directly but collaterally. Habeas corp>us was an available remedy in this case, an