Opinion
No. 22759.
Delivered December 8, 1943. Rehearing Denied January 26, 1944.
Habeas Corpus — Jurisdiction.
An order refusing to issue a writ of habeas corpus is not a final judgment of which the Court of Criminal Appeals has jurisdiction upon appeal.
Appeal from District Court of Stephens County. Hon. Floyd Jones, Judge.
Appeal by relator from an order of district court refusing to issue writ of habeas corpus upon appellant's application therefor.
Appeal dismissed.
The opinion states the case.
Howard Davidson, of Rotan, for appellant.
Spurgeon E. Bell, State's Attorney, of Austin, for the State.
This is an appeal from an order of the Judge of the 90th District Court of Stephens County, refusing to issue the writ of habeas corpus upon appellant's application therefor.
Such an order is not a final judgment of which this court has jurisdiction upon appeal. Ex parte Smith, 85 Tex.Crim. R., 215 S.W. 299; Ex parte Sheets, 126 Tex.Crim. R., 64 S.W.2d 781; Ex parte Steele, 135 Tex.Crim. R., 121 S.W.2d 605; 21 Texas Jurisprudence 483.
The appeal is therefore dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
Appellant insists that we were in error in dismissing the appeal.
In support of the proposition that no appeal will lie from an order refusing to issue a writ of habeas corpus we cite the following in addition to the authorities referred to in our original opinion: See cases listed in Section 243, Branch's Ann. Tex. P. C., p. 152, and particularly Ex parte Thomas, 61 Tex. Crim. 573; Ex parte Barnett, 74 Tex.Crim. R., 167 S.W. 845; also 21. Tex. Jur. p. 483, sec. 57.
In relator's motion for rehearing he adverts to the Smith case referred to in our original opinion as not supporting our conclusion. We are quite sure this arises from the fact that two Smith cases are reported on page 299 of 215 S.W., each involving habeas corpus proceedings. The one relied upon by us was Ex parte Mary Smith and not Ex parte Sam Smith.
Relator's motion for rehearing is overruled.