Ex parte Montgomery , 153 Tex. Crim. 605 ( 1949 )

BEAUCHAMP, Judge.

Maudie Montgomery, styled relator, filed a petition for writ of habeas corpus with the clerk of the 33rd Judicial District Court of Burnet County in behalf of her husband, seeking to secure his release from the penitentiary on the asserted grounds that he is not guilty of the offense for which he was convicted and that he is now insane and is in danger of serious injury as a convict in the state penitentiary.

The district judge, acting under Article 119, C. C. P., set the matter for hearing but limited his inquiry as to whether or not the convict’s sanity was inquired into at the time of the trial. Evidence was heard and the testimony produced at such hearing comes with the appeal to this court. While the record does not state what order was made, it does appear that the court refused to issue the writ. He then, in attempting to comply with Article 119, C. C. P., certified the matter to this court for further proceedings. The district court had no authority to so certify the matter, neither did relator have a right of appeal. See full discussion in Cause No. 24,617, Ex parte Curtis Howell Montgomery, this day decided. (Page 603 of this volume.)

The proceeding is not properly before this court. It is accordingly dismissed for want of jurisdiction.