Opinion
No. 23098.
Delivered March 7, 1945. Relator's Motion for Rehearing Granted March 28, 1945.
1. — Habeas Corpus — Statement of Facts.
Where there was an agreement between relator's attorneys and state that testimony taken on examining trial in justice court should be used in its entirety in habeas corpus proceeding, but the statement of facts was in question and answer form and was not approved by trial judge and did not disclose a file mark evidencing that it had been filed in the court below, purported statement of facts could not be considered by Court of Criminal Appeals.
2. — Same.
In absence of statement of facts which court could consider, a presumption existed that judgment in habeas corpus proceeding remanding relator without bail was supported by evidence and in accordance with law.
ON MOTION FOR REHEARING.3. — Habeas Corpus — Bail.
Where the relator has furnished appellate court with a statement of facts in narrative form, properly approved by the trial judge and filed in proper time, the appellate court will consider the same, and the facts showing that relator is entitled to bail, the cause is reversed and bail fixed in the sum of ten thousand dollars, conditioned as required by law.
Appeal from District Court of Nueces County. Hon. Tillman Smith, Special Judge.
Ex parte habeas corpus proceeding by petitioner. From an adverse judgment, petitioner appeals.
Reversed.
The opinion states the case.
Roy A. Scott, of Corpus Christi, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Relator was charged by complaint in the justice court of Nueces County with the offense of murder. Upon an examining trial, after hearing evidence, he was remanded without bail to the custody of the sheriff to await the action of the grand jury. He, thereafter, made application to the district judge for a writ of habeas corpus, which was granted, and, upon the hearing of such writ, bail was again denied him, and he appeals.
There was an agreement by and between relator's attorneys and the State that the testimony taken on the examining trial in the justice court, and which was in writing, should be used in its entirety in this present case, and we find same in this record, filed as a statement of facts. This statement is entirely in question and answer form, in the first place, and again same is not approved by the trial judge, and same has no file mark thereon evidencing the fact that it was filed in the court below. Under this array of objections thereto we are convinced that such a purported statement of facts should not be considered by this court. See Art. 760, Subdiv. 1, C. C. P., and note 23 thereunder.
There being no statement of facts before this court which we can consider, it will be presumed that the judgment remanding relator without bail was supported by the evidence and in accordance with law. Ex parte Adams, 13 S.W.2d 842; Ex parte Wellburn, 70 Tex.Crim. R., 157 S.W. 154; Ex parte Wair, 130 Tex. Crim. 204, 93 S.W.2d 160.
The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.
Since writing the above opinion, relator has furnished this court with a statement of facts in narrative form, properly approved by the trial judge, and filed in proper time, and we now consider the same.
Under the facts herein shown we are of the opinion that relator is entitled to bail, and this cause is therefore reversed and bail fixed in the sum of Ten Thousand Dollars, to be conditioned as required by law.