Ex Parte Ewell Morris , 96 Tex. Crim. 256 ( 1924 )

An application for a writ of certiorari on behalf of Ewell Morris is here presented by his attorney. It appears that anterior to this time Morris has been convicted of a capital offense which judgment was affirmed on appeal to this court, and that the date for the execution has been fixed for January 16, 1924. A plea of insanity was interposed in behalf of Morris upon his trial originally and was an issue therein upon the evidence then before the jury and court. It is made to appear that after the affirmance of said cause by this court an affidavit was filed on behalf of Morris asserting that he had become insane subsequent to his conviction in said cause. Upon the filing of said affidavit of insanity the case was heard and a judgment entered declaring Morris to be sane.

As we understand the application for certiorari it seeks to have this court direct the district clerk of Victoria County, Texas, to make out and forward to this court without delay a transcript of the record in said insanity inquiry trial had of said Morris upon the affidavit alleging that he had become insane since his conviction. Apparently this is sought upon some proposition that said trial was not conducted in such manner as to lead to a satisfactory conclusion, and was without that due process of law contemplated by the Constitution of this State and the United States. In the application averments seem to be made that an inspection of the record would show that the insanity inquiry was not conducted in a proper manner.

We are not at liberty to grant the application. In Darnell v. State, 24 Texas Crim. App., 6, this court held that one charged with being insane who upon trial is found to be sane has no right of appeal. Finding one to be sane in such case is tantamount to a verdict of not guilty. The right of appeal is in no event given to one charged except upon conviction. It is held that conviction is an indispensable requisite to the right of appeal and that such fact must be made to appear before this court could entertain jurisdiction. If this court undertook to grant the application now before it, this would in effect be compelling the perfecting of a record in a cause of which this court would have no jurisdiction after the record had been perfected. The courts will not do useless things. The law does not contemplate that a useless thing shall be done by the courts. Why perfect a record or direct that it be sent to this court when this court would be without jurisdiction to act in the premises because there was no judgment of conviction. In Ex parte Quesada, 34 Tex. Crim. 116, it appears that an application was made to this court for a writ to compel a trial court to hear and determine the question of insanity after conviction for a felony. This court declined to issue any writ, stating that it has no power to issue a writ for any such purpose. This language appears in the opinion in that case:

"If the question of insanity had been tried under the provisions of the code, and the appellant had been found sane against the great overwhelming preponderance of the testimony, and if every rule of evidence had been violated in the trial, no appeal would lie to this court; and if we have no appellate jurisdiction, the writ in this cause would not be to enforce the jurisdiction of this court."

To the same effect see Bulger v. People, 61 Colo. 181; Rex v. Larkins, 22 Cox C.C. 598; State v. Chretlen, 114 La. 81; State v. Nordstrom, 21 Wash. 403.

This court is only given by statute and the Constitution power to issue writs necessary for the protection or enforcement of its own jurisdiction. There being no question of the jurisdiction of this court involved in the application for certiorari, same must be refused and it is accordingly so ordered.

Writ denied.