Ex Parte Francis , 91 Tex. Crim. 398 ( 1922 )

This appears to be an appeal from an order of the District Judge remanding relator without bail. The record is not in condition to show that the jurisdiction of this court has attached. The order of the judge remanding relator is as follows:

"IN THE DISTRICT COURT OF COTTLE COUNTY, TEXAS. IN VACATION. Ex Parte Alvin Francis.

I am of the opinion that the said Alvin Francis is legally held in custody and under restraint of his liberty by the said respondent, Morgan Wright, Sheriff of Cottle County, Texas.

It is therefore ordered and adjudged that the application of the said Alvin Francis herein be denied and that the said Alvin Francis be and is hereby remanded to the custody of said respondent, Morgan Wright, Sheriff, aforesaid.

J.H. MILAN."

It will be observed from the foregoing order that the hearing was had in vacation. The transcript is certified to by the District Clerk of Cottle County. Article 950, Vernon's C.C.P. provides that when the proceedings upon habeas corpus take place before the court in session the transcript shall be prepared and certified to by the Clerk; but when had before the judge in vacation, the transcript may be prepared by any person under the direction of the judge and certified by such judge. There is no certificate by the judge as to the correctness of the transcript in the instant case, and to that extent the provisions of Article 950 have not been complied with.

The transcript shows no notice of appeal from the order of the judge remanding relator. Without notice of appeal this court has no jurisdiction to review the proceedings even though the transcript were properly certified to. Ex parte Cates,89 Tex. Crim. 504; Ex parte Shearman, 89 Tex.Crim. Rep..

For the reasons stated the appeal is dismissed.

Dismissed.

ON REHEARING. April 5, 1922.