Opinion
No. 25257.
March 28, 1951.
Appeal from the District Court, Johnson County, Penn J. Jackson, J.
No attorney on appeal for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Relator was convicted in Johnson County for the possession of intoxicating liquor for the purpose of sale in a day area and by a jury fined the sum of $400.00 and given 60 days in jail.
This cause was appealed to the Court of Criminal Appeals of Texas and by such court affirmed as our Cause No. 24,955, on January 17, 1951, and our mandate was issued thereunder. Thereafter, by virtue of Art. 137, Vernon's Ann.C.C.P., relator sued out this writ of habeas corpus before the District Judge of Johnson County alleging that he was confined under such mandate in the county jail of such county and that such confinement was endangering his health, he being afflicted with tuberculosis, and that such confinement would probably cause him to lose his life. This issue was joined and the testimony of two doctors was taken therein. It appears from such testimony that the contemplated confinement in such jail would probably benefit rather than be detrimental to relator's health. It seems that the confinement contemplated by the Sheriff of that county would not endanger relator's health as called for in Art. 137, supra, but would probably be beneficial thereto.
Under the testimony in this cause, we do not think that the relator is entitled to any relief under the provisions of Art. 137, supra. See Ex parte Lynch, 150 Tex.Crim. R., 200 S.W.2d 828; Thomas v. State, 40 Tex. 6; Ex parte Johnson, 60 Tex.Crim. 50, 131 S.W. 316, 31 L.R.A., N.S., 916.
Therefore, the order remanding relator to the custody of the sheriff is affirmed.