Ex Parte Biela

BROOKS, Judge. This is an original application for the writ of habeas corpus from ICarnes County. The facts relied upon by applicant are: That he was indicted charged with seduction committed on November 39, 1901. On March 10, 1904, appellant was tried upon said charge, was convicted, and his punishment assessed at a fine of $500, and all costs of court. Upon default in the payment thereof, he was remanded to the county jail. The fine and costs imposed against relator aggregate the sum of $998.37. Attached to the application is the return of the sheriff showing he placed applicant in jail on said judgment on March 9, 1904, where he has since been confined. Under article 967, Penal Code, the punishment for seduction is by imprisonment in the penitentiary not less than two nor more than five years or by fine not exceeding $5000. By the Laws of the Twenty-eighth Legislature (1903), page 331, the penalty for seduction was changed, and is now not less than two nor more than ten years in the State penitentiary, without any alternative fine, as in the statute cited. It will be noted that applicant violated the law prior to the last enactment of the Legislature, and hence the punishment applied under the former statute. He now seeks release on the ground that the law is inoperative, since there is no way provided by which a person convicted can be discharged from a punishment by fine except by paying it in cash, and if a person without means is imprisoned for even a small amount, and could not discharge it, he would be compelled to remain in custody indefinitely. Article 55, Code of Criminal Procedure, provides every offense which is punishable by death or by imprisonment in the penitentiary either absolutely or as an alternative, is a felony. Every other offense is a misdemeanor. Then, as applicant insists, this statute clearly makes the offense of which he was convicted a felony; and as applicant further insists, there is no authority in law for the commissioners court to hire out applicant, as the statute does not authorize such procedure in case of a felony. This exact question was passed upon by this court in Campbell v. State, 33 Texas Crim. App., 363; Woods v. State, 36 Texas Crim. App., 490; and also by the Supreme Court in Ward v. White, 86 Texas, 170. But does the fact that the commissioners court can not hire applicant out as under the misdemeanor law, authorize this court to order the discharge of applicant? There is no question as to the constitutionality of the law under which he was prosecuted; there is no question as to the accuracy and regularity of the trial and conviction; but the sole insistence is ' *489 made that he is entitled to be released from custody because the Legislature has failed to provide a means of fixing or carrying out the punishment inflicted upon him. This is a matter over which we have no control. We suggest to the Legislature in this conection that the unfortunate hiatus of the law in this regard should be obviated. There being no authority for releasing applicant under his application, the application is accordingly refused. Application refused.