Ex Parte Lynn

Citations

• 19 Tex. Ct. App. 120
• 1885 Tex. Crim. App. LEXIS 170

Syllabus

<p>1. Misdemeanor — Habeas Corpus.—Articles 138 and 139 of the Code of Criminal Procedure, while not mandatory, clearly indicate that, before a person detained upon a charge of misdemeanor resorts to this court for a writ of habeas corpus, he should apply for the writ to the county judge of the county in which the misdemeanor was committed, or, if there be no county judge in such county, then to the nearest judge or court competent to grant the same. The jurisdiction of this court to grant the writ, even though it was not, in the first instance, applied for to the proper local court, is not to be questioned, but the discretion to refuse the writ is one which this court should and will exercise in all cases wherein no valid reason is shown for failing to apply to the proper local court. See the opinion on the question.</p> <p>2. .Same — Case Stated.—As an excuse for his failure to apply to his local judge for the writ, the applicant in his petition alleges that said judge was so prejudiced against him, and his avocation as a retail liquor dealer, that he could not obtain from him a fair and impartial hearing of his application for the writ. Held, that such allegations, though sworn to, are mere suppositions and conjectures, and afford no valid excuse for failing to properly apply to the local judge for the writ.</p> <p>3. Same — Remedy.— If the application of a defendant detained under a charge of misdemeanor be refused by his local county judge, such applicant has the right to apply for the same to another court or judge competent to grant the same; or, if the writ be granted by the local judge, and the applicant, upon the hearing thereof, be remanded to custody, an appeal will lie to the court of appeals, returnable at whichever branch the said court may then be in session.</p>