Ex Parte Heartsill ( 1931 )

Asserting that there can be no prosecution maintained under the indictment described in the original opinion, the appellant, through his counsel, contends that the court was in error in failing to order the discharge of the accused. The contrary view is entertained in view of article 157, C. C. P., which declares in substance that if there is reason for belief that an offense has been committed, the prisoner should not be discharged because the proceeding under which he is held was irregular or void. To the same effect is article 158, C. C. P. See Ex parte Nelson, 84 Tex.Crim. Rep., 209 S.W. 148; Ex parte Garner, 93 Tex.Crim. Rep., 246 S.W. 371; Ex parte Lowe, 94 Tex.Crim. Rep., 251 S.W. 506; Ex parte Acker, 85 Tex.Crim. Rep., 212 S.W. 500. Other cases are collated in Vernon's Ann. Texas C. C. P., 1925, vol. 1, pp. 150-151.

The motion for rehearing is overruled.

Overruled.

ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.