Ex Parte Eddie Seymour

Relator was indicted in Harris County, Texas, charged with felony theft — the particular charge being the theft of an automobile — on or about July 17th, 1935. The indictment also contained averments to the effect that relator had previous to the commission of the instant offense been twice convicted of other felonies, the purpose of said averments being to bring relator under the 'habitual criminal' penalty fixed by Art. 63 P. C. of life imprisonment in the penitentiary on a third conviction. Relator entered a plea of guilty, waiving a jury by approval of the court and the attorney for the State, was adjudged guilty on said plea and evidence submitted on October 3, 1935, as an habitual criminal and his punishment assessed at life imprisonment in the penitentiary.

On August 4, 1938, relator made application to the Hon. Sam Holland, Judge of the District Court of Houston County, for a writ of habeas corpus seeking release from the penitentiary, asserting that the averments in the indictment under which he was convicted charging that he had twice before been convicted of felonies were insufficient to support a judgment that he was an habitual criminal, and took the position that said judgment of conviction was void. The said judge granted the writ and upon a hearing on August 15th, 1938, he remanded relator to the penitentiary authorities from which judgment this appeal is prosecuted.

It may be stated here that no attack was made on the indictment in the trial court at the time relator entered his plea of guilty and no appeal was prosecuted from said judgment.

We quote from Ex parte Garcia, 90 Tex.Crim. R.,234 S.W. 892 as follows: "When one has been indicted by a legal grand jury and becomes the defendant in a prosecution pending in a court of competent jurisdiction, we believe that he may present every defense known to our law and every right secured to him by such laws to the trial courts and to this court on appeal, or by one of the statutory writs mentioned above.We conclude that, failing to invoke the aid of such courts byone of these methods, he cannot now avail himself of a writ ofhabeas corpus to test the sufficiency of the indictment. Ex parte McKay, 82 Tex.Crim. R., 199 S.W. 637; Ex parte Drane, 80 Tex.Crim. R., 191 S.W. 1156."

From the opinion in Drane's case (supra) it appears that relator there was by a collateral proceeding — habeas corpus — undertaking to attack the State's information upon which conviction was based. This court said: "If it (the information) in law charged no offense, it would be the duty of this court to discharge the appellant. If, however, it charges an offense, but does so in a defective manner, then this court would not discharge him. Such matters as go to the manner and form of informations are not available on application for writ of habeas corpus, but to be considered if raised by motion or plea in the trial court." Many authorities are cited in support of the statement.

In Ex parte McKay, 82 Tex.Crim. R., 199 S.W. 637, is found the following statement. "The rule prevailing in this court seems to be that, when an indictment regularly presented attempts to charge the accused with an offense defined in our Code, a discharge on habeas corpus will not be awarded, however irregularly the offense may be charged."

All of the principles stated above find support in Ex parte Mathews, 96 Tex.Crim. R., 258 S.W. 477. See also Ex parte Meadows, 131 Tex.Crim. R., 100 S.W.2d 702; Ex parte Hendrix, 64 Tex.Crim. R., 142 S.W. 570; Ex parte Helton, 128 Tex: Cr. R. 112, 79 S.W.2d 139, and cases therein cited.

If it should be conceded that the averments in the indictment charging relator with previous convictions are imperfectly pleaded, still they are not such as would render his judgment of conviction void under all the authorities cited.

Believing if there were imperfections in the indictment that relator cannot collaterally attack them by habeas corpus proceeding it follows that the judgment remanding relator should not be disturbed.

The judgment is therefore affirmed.

ON RELATOR'S MOTION FOR REHEARING.