Ex parte Edwards ( 1951 )

Per Curiam.

Relator, under sentence of death, affirmed by this Court in Edwards v. State, No. 25,145, (Page 146 this volume), 239 S.W. (2d) 618, filed his application for habeas corpus before Hon. N. H. Kirby, Judge of the 77th Judicial District of Texas, alleging that he was illegally restrained by the warden of the penitentiary by reason of certain allegations shown in the application.

The order entered by the district judge granted this writ and made it returnable before this court as provided by Art. 119, Vernon’s Ann. C.C.P.

The state moves that the writ be refused, or dismissed, because the facts alleged, if true, would not entitle relator to relief, and moves that the cause be advanced and heard because the date set for the execution is near and has not been stayed.

From an inspection of the transcript, we are convinced that the facts alleged, if true, would not sustain a collateral attack upon the judgment.

In order to entitle relator to relief by habeas corpus, it was incumbent that he show that the judgment is void. See Ex parte Oliver, (Page 235 this volume), 140 S.W. (2) 316.

The application for habeas corpus should have been denied by the trial judge.

For the reasons stated, the state’s motion is granted, the relief prayed for is denied, and no motion for rehearing will be permitted to be filed.