Ex Parte Nicely , 116 Tex. Crim. 143 ( 1930 )

This is an appeal from an order of the district court of Wichita County upon a habeas corpus hearing remanding appellant to the custody of the sheriff of said county.

Appellant was arrested pursuant to instructions contained in a telegram received from the chief clerk of the penitentiary. This telegram read as follows: "Huntsville, Texas, March 19, 1930. F. L. Burns, Chief Police, Wichita Falls, Texas. Hold Hope Nicely for our transfer agent. Sheriff Nacogdoches is through with him. J. W. Denton, chief clerk." The foregoing telegram was attached to the return of the sheriff for the purpose of showing his authority for holding appellant in custody. Upon the hearing said telegram, as well as letters and a prison record received from the authorities of the penitentiary, were introduced in evidence over appellant's objection that said instruments were hearsay and that no proper predicate had been laid for their introduction. No other evidence in support of the right of the sheriff to restrain appellant was offered in evidence. Appellant's objection was well taken. Eliminating the hearsay testimony which the court heard over appellant's objection, there is no evidence in the record supporting the contention of the State that appellant is an escaped convict. It therefore becomes our duty to order a reversal.

The judgment remanding appellant is reversed, and appellant is ordered discharged, under this particular proceeding.

Reversed and discharged.

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.