Opinion
No. 11848.
Delivered March 20, 1929.
1. — Habeas Corpus — Discharging Fine and Costs — Statute Construed.
Art. 793 as it appears in the Code of Criminal Procedure of 1925 was superseded by its amendment in Chap. 68, p. 194, 40th Leg. 1st Called Session, and thereby the authority for the allowance of $3.00 per day in working out a fine and costs was repealed and $1.00 per day allowance provided.
2. — Same — Continued.
The proviso contained in the Act of the 40th Leg. 1st Called Session, supra, is meaningless, and of no force or effect. See Ex Parte Troy Pally, No. 12292 not yet reported.
Appeal from the County Court at Law of Wichita County. Tried below before the Hon. C. M. McFarland, Judge.
Appeal from a habeas corpus trial seeking discharge from a fine and costs. Affirmed.
The opinion states the case.
Mathis Caldwell of Wichita Falls, for appellant.
Wayne Somerville, County Attorney, Geo. W. Anderson, Assistant County Attorney, of Wichita County, and A. A. Dawson of Canton, State's Attorney, for the State.
The appeal is from an order of the judge of the County Court at Law of Wichita County refusing to discharge the appellant in a habeas corpus proceeding.
On the 18th day of January, 1928, the appellant was convicted of a misdemeanor. The penalty assessed was $100.00 fine and the cost of the proceeding totaling $138.50. He sought a release upon the theory that under the law he was entitled to credit at the rate of $3.00 per day and that by that measure the judgment against him had been satisfied by confinement. It is the contention of the State that his credit should be but $1.00 per day. The appellant relied upon the amendment of Art. 793, C. C. P., contained in Chap. 68, Acts of the 40th Leg., 1st Called Session. Before its amendment, Art. 793, supra, provided for a credit of $3.00 per day under certain circumstances. As amended the allowance was reduced to $1.00 per day, the act containing a proviso in these words:
"Provided that the provisions of this Act shall not apply to counties not having poor farms."
The facts present the exact legal question decided by this court in the case of Ex parte Troy Polly, No. 12,292, not yet reported, in which it was held that Art. 793, as it appears in the Code of Criminal Procedure, 1925, was superseded by its amendment in Chap. 68, p. 194, 40th Leg., 1st Called Session, supra, and that thereby the authority for the allowance of $3.00 per day was repealed, and further deciding that the proviso quoted was meaningless. In view of the comprehensive discussion of the matter in the Polly case, supra, to which reference is made, further remarks in the present instance are deemed unnecessary.
The judgment is affirmed.
Affirmed.