Opinion
No. 11921.
Delivered May 30, 1928.
1. — Habeas Corpus — Record Incomplete — Nothing Before This Court.
Where a record brought forward to this court appealing from an order remanding appellant on a habeas corpus trial, recites that appellant was restrained of his liberty "by virtue of a certain writ, order or process, copy of which is hereto annexed," and no copy of such order, process, etc., is contained in the record, nothing is presented before this court for review.
2. — Same — Theft of Chicken or Turkey — Law Unconstitutional.
We might say, parenthetically, that the statute making the theft of a chicken or turkey a felony per se, has been held unconstitutional by this court, and upon an application for discharge under a judgment of conviction under that statute, if properly brought before this court, the discharge would be ordered.
Appeal from the District Court of Van Zandt County. Tried below before the Hon. Joel R. Bond, Judge.
Appeal from an order of the District Court remanding appellant to the custody of the sheriff, upon a hearing of his application for discharge. Affirmed.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
This is an appeal from an order of the District Court of Van Zandt County remanding applicant to the custody of the sheriff upon a hearing of his habeas corpus application for discharge.
Applicant filed in the District Court of said county on February 13, 1928, an application stating that he was illegally confined and restrained of his liberty "by virtue of a certain writ, order or process, copy of which is hereto annexed." If any writ, order or process was attached to the application it certainly does not accompany same in this transcript. We have no means of finding out from this record what applicant based his application upon, or what ground he advances for relief from confinement. Such application brings nothing for review before this court, and brought nothing for review before the trial court, who correctly entered judgment remanding applicant.
We might say, parenthetically, that the statute making the taking of a chicken or a turkey a felony per se has been held unconstitutional by this court, and upon an application for discharge under a judgment and sentence rendered upon the trial of one for such offense, if properly before the court, the discharge should be ordered, but we find nothing in this record upon which the trial court could have acted, nor can we.
The judgment remanding applicant is affirmed.
Affirmed.