1. Habeas Corpus in Vacation — Transcript, How Certified — Practice on Appeal.
Where an appeal is taken from a judgment in habeas corpus proceedings heard by the judge in vacation, the record must be certified by the judge; and, unless this has been done, the appeal will be dismissed.
ON THE MERITS. 2. Habeas Corpus for Bail — Proof Not Evident.
See facts stated on a habeas corpus hearing for bail in a murder case which the court hold not to be proof evident of murder in the first degree, and that relator is entitled to bail, which is granted.
DAVIDSON, JUDGE.
Appellant was arrested charged with the murder of Austin King, and resorted to the writ of habeas corpus to secure bail. Upon the hearing of the case in vacation he was remanded to custody, without bond; hence this appeal.
Upon an examination of the record, we find that it is not certified by the judge, as required by the statute. For this reason we can not entertain jurisdiction of this appeal. See Ex Parte Malone, 35 Tex.Crim. Rep.. There are several other cases following the Malone Case, but we deem it unnecessary to cite them. The appeal is accordingly dismissed.
Appeal dismissed.
HURT, Presiding Judge, absent.
After the dismissal of the appeal, relator cured the defect in the transcript as pointed out in the above opinion by having the same properly certified by the judge who tried the case, and upon his motion the judgment of dismissal was set aside and the cause reinstated upon the docket, and the following is the opinion upon the merits, delivered November 2, 1898:
OPINION UPON THE MERITS.
DAVIDSON, JUDGE.
Relator was arrested upon the charge of murder and resorted to the writ of habeas corpus for the purpose of securing bail. Upon the trial under said habeas corpus proceedings the charge against him was held nonbailable. We have carefully examined the record, and are of opinion that the judgment was erroneous, and that relator is entitled to bail. While refrain from discussing the evidence, after a careful examination of the same we have arrived at the conclusion above stated. We therefore fix the amount of bail at $3000. Upon the execution of a bond by relator in said amount, in the terms and under the requirements of the law, the officer holding relator will release him.
The judgment is reversed, and bail fixed at $3000.