Ex Parte Jonischkies , 88 Tex. Crim. 574 ( 1921 )

The able prosecuting attorney of De Witt county has filed a motion for rehearing on behalf of the State in this case. It is insisted that we erred in permitting an attack upon the judgment of conviction herein because of the insufficiency of the complaint, and authorities are cited in the motion as sustaining the proposition that the sufficiency of the complaint cannot be determined by habeas corpus. An examination of the authorities cited will disclose that it is uniformly held by this court that the sufficiency of a complaint or indictment cannot be tested byhabeas corpus before a trial in the proper court below, the presumption being that when the case is up before such court, the law will be followed and if the complaint is fatally defective, same will be then adjudged. Other authorities cited correctly hold that defects of form which should have been raised in the trial court cannot be tried out here by resort to the writ of habeas corpus after conviction. We are cited to no authority and know of none which would hold that this court was without power or precedent by writ of habeas corpus to review an indictment or information after judgment in order to determine whether or not same is void. In cases such as the one now before us, where, by the provisions of our statute, the right of appeal extends no further than to the County Court, we have always held that this court will inquire by this writ into the question of whether or not the State's pleadings are void. In the instant case we confined ourselves to that question. An ordinance of the City of Yorktown which in terms made it penal to fail to drive an automobile on the right hand side of a given traffic post could not be upheld as definite or certain or measuring up to the requirements of a statute penalizing a citizen. When the Act, whether of the legislature of a State or of a City, under which a prosecution is had, is followed in express terms or substance by the complaint in any given case, it is sufficient to bring in review before this court both the pleading and the law under which the prosecution is had, to attack the pleadings, as being void in that same set out no offense against the law. We did not discuss the question of the sufficiency of the State's pleading in the instant case from any standpoint of mere form. Said pleading appears to be in entire harmony with the language of the ordinance which relator was charged with having violated, but our conclusion was that the complaint was void because its language, if admittedly true, charged relator with no act which could be held penal, and which, if admittedly made penal by the terms of an ordinance using the same language as said complaint, would necessarily involve our opinion that the ordinance was also void.

The State's motion is overruled.

Overruled.