Ex Parte Brown , 43 Tex. Crim. 45 ( 1901 )

Upon application for the writ of habeas corpus before Hon. R.J. Alexander, county judge of Burleson County, relator was remanded to the custody of the sheriff, and appeals. The Assistant Attorney-General moves the dismissal of this appeal on the following grounds, to wit: "(1) That, although there is a copy of the certificate of the county judge before whom the writ of habeas corpus was heard, this transcript before this court was certified to and the copy of said certificate of the county judge is certified to by the county clerk of Burleson County. (2) The State further moves to dismiss the appeal because the purported record or transcript fails to show relator has been continuously in the custody of the sheriff since he was remanded upon the hearing of said writ." An examination of the record shows the grounds of the motion are meritorious. The record should be certified by the judge, instead of by the clerk, when the hearing is had in vacation. See Ex parte Overstreet, 39 Tex.Crim. Rep.; Ex parte Malone,35 Tex. Crim. 297. The record fails to show relator has been continuously in custody of the sheriff since he was remanded upon the hearing of said writ. This is necessary. See Ex parte Patterson, 42 Tex.Crim. Rep.; Ex parte Snyder,39 Tex. Crim. 120; Bruce v. State, 40 Tex.Crim. Rep.. The motion is sustained, and the appeal is accordingly dismissed.

Dismissed.

ON MOTION FOR REHEARING.