Ex Parte Fisher

Appellant was convicted in the district court of Harrison County for the offense of theft of cattle, and his punishment assessed at confinement in the penitentiary for two years. Motion for a new trial was overruled and appellant gave notice of appeal to this court, which notice was properly entered of record. On April 19, 1930, at the term of court at which appellant was convicted, sentence was duly pronounced upon him. It appears that in the trial of the case there was evidence to the effect that the injured party had promised appellant not to prosecute him if he would pay him for his stolen cattle. The court instructed the jury that the injured party was an accomplice as a matter of law. At the same term of court at which he was convicted appellant made application for a writ of habeas corpus, wherein he alleged that he was illegally restrained of his liberty by the sheriff of Harrison County under and by virtue of the sentence imposed upon him in the case to which reference has been made. The writ being granted, a hearing was had and the trial court entered judgment remanding appellant to the custody of the sheriff. From the judgment remanding him, appellant has perfected his appeal.

It is appellant's contention that the finding of the trial court that the injured party was an accomplice is tantamount to a finding that there is no evidence upon which a judgment of conviction for theft of cattle can be predicated. Appellant had his right of appeal, and notice of appeal was duly entered. This court declines to permit the writ of habeas corpus to usurp the function of an appeal. Ex parte Evans,4 S.W.2d 67; Ex parte Jarvis, 3 S.W.2d 84, and authorities cited.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.