Ex Parte Cassens

BROOKS, Judge. This is an original application for a writ of habeas corpus, which was granted by Judge W. L. Davidson of this court. Relator had a complaint filed against him in the Justice Court of Precinct No. 1 of Williamson County, Texas, on the 19th of August, 1905, which complaint charged relator with the offense of selling and giving intoxicating liquors to a minor in justice precinct No. 5 of said Williamson County. On the 21st day of September, 1905, applicant was by the court convicted and fined the sum of $25. An appeal was taken to the County Court of said county and the cause was tried by the court on the 13th day of March, 1906, and applicant was found “guilty as charged in the complaint,” and his punishment assessed at $25, That thereupon his' appeal was *379 perfected to this court, and was'dismissed from this court on motion of the State on the ground that a judgment of the Justice Court, appealed to the County Court, is final in the County Court when the amount of the fine is under $100. See 56 Texas Crim. Rep., 18, 118 S. W. Rep., 546. At the time of this alleged offense, the precinct wherein it was alleged said offense was committed, was not under the operation of the local option laws of this State. At the time of the trial of relator in the Justice Court of Precinct Ro. 1, as above stated, the local option laws of this State were not in effect in said county; that soon thereafter, and some four months before the trial of this cause in the County Court of Williamson County, the county of Williamson had legally adopted the local option laws of this State, and same were in force and effect in all of Williamson County at the time of the trial of this cause in the County Court of said county. That at the trial in the County Court of relator herein his punishment was assessed at a fine of $25, the judgment reciting that applicant was found “guilty as charged in the complaint.” Subsequent to the dismissal of the case from this court, as above stated, applicant was arrested on a writ of commitment and placed in the county jail of Williamson County. The agreed statement of facts further disclose that the facts adduced on the trial of said case, both in the Justice and County Courts, show a straight sale by this applicant to a minor of two dozen bottles of beer, same being intoxicating liquor, for which applicant received the sum of $3 in payment therefor. That said sale was made in the saloon of applicant, and at the request of said minor, said minor tendering the money in payment therefor and relator receiving the same. It will be seen from an inspection of' the above statement of facts, which is practically a copy of the agreed statement, that the complaint upon which applicant was convicted . charged him with the selling and giving of intoxicating liquors to a minor, and the judgment of the court convicting him states that he was found “guilty as charged in the complaint.” We can not tell, therefore, whether he was convicted of selling or giving the intoxicating liquor. It is true the facts show that it was a sale. If the court convicted him on a gift, then no possible cavil could be indulged in as to the validity of this judgment under any phase of the question, since there would be no conflict between the local option law and the prosecution of relator for giving intoxicating liquor to a minor, as indicated by some of the decisions of this court. Furthermore, we hold that a writ of habeas corpus is not a writ of appeal. Applicant has had his day in court, and under the Constitution of this -State he appealed to the last court authorized to pass upon his case. The questions he suggests for our review would be bare irregularities at best, and would not justify the use of the writ of habeas corpus. *380 There is nothing, furthermore, in the statement to indicate that the questions here relied upon were urged before the trial court. If they were his judgment upon same could barely be erroneous and not void, and the writ of habeas corpus, therefore, could not be invoked by relator. The evidence shows, as above stated, that it was the duty of the relator to show that the local option law was in force, at the time the county judge rendered his decision finding applicant guilty. In other words, it is a question of fact and not of law as to whether or not a local option election has been held in any county in Texas. The county judge may have held that although an election had been held, that some of its necessary steps had not been complied with or he may have refused to believe that the evidence warranted the court in concluding there had been a sale of whisky, and believed that the relator had given the prosecuting witness whisky. There is no question but what the County Court had jurisdiction of the person and of the subject matter. Then any effort to review the decision of the County Court, it having jurisdiction of the person and of the subject matter, by habeas corpus would be using the writ of habeas corpus as a writ of appeal. As early in the history of this court as the case of Ex parte Boland, 11 Texas Crim. App., 159, after discussing the writ of habeas corpus at some length, the court uses this language: “From a reasonable application of the rules of law above laid down we conclude, without further amplification, that the process by which the relator was held when the writ of habeas corpus was sued out, was not a void process, and that habeas corpus would not relieve him against its operation. When the original case was before the County Court on the defendant’s appeal, he then had his day in court, and, for aught that appears from the proceedings before us, all the questions presented by his petition for habeas corpus could then have been presented and decided by the County Court, and such a decision would have been within the jurisdiction of the County Court.- And it appearing that the County Court had jurisdiction of the person of the defendant, as well as of the matter in litigation, whatever defense he had it became his duty to submit to that court and at that time; and if by the Constitution and the law he was not entitled to a further appeal he is without remedy, and the writ of habeas corpus can not be invoked to relieve him from custody, he being confined on account of his failure to pay a pecuniary fine imposed against him on a regular trial before a court of competent jurisdiction.” This decision clearly settles the contention against applicant. The judgment was not void but merely voidable at best, and we have held repeatedly since the rendition of the above cited decision that a writ of habeas corpus can not be used as a writ of appeal, but only in those cases where the judgment is absolutely void. The judgment of the County *381 Court in this case was not void, but at best merely voidable. This court can not review, under a habeas corpus, a judgment of the court below because the court below erred in construing or applying the facts or that the court’s findings were contrary to the facts. It was a question of fact, as stated above, as to whether the local option law was in force at the place where applicant is alleged to have sold the whisky or given the whisky to the minor, and being a question of fact, the court passed on the fact and the law incident to., that fact, and found applicant guilty. We do not deem it necessary to further elaborate on the question, but cite the following authorities cited in the State’s able brief for further discussion of the question: Ex parte White, 50 Texas Crim. Rep., 473, 98 S. W. Rep., 850; Ex parte Fuller, 19 Texas Crim. App., 241; Ex parte Scwartz, 2 Texas Crim. App., 74; Ex parte Dickerson, 30 Texas Crim. App., 448; Ex parte Call, 2 Texas Crim. App., 497; Ex parte McGrew, 40 Texas, 476; Griffin v. State, 5 Texas Crim. App., 457; Darrah v. Westerlage, 44 Texas, 388; 21 Cyc., p. 326; Donaldson v. State, 15 Texas Crim. App., 25. [Behearing denied December 1, 1909. — Beporter.] Belator is remanded to the custody of the officers. Relator remanded to custody.