Opinion
Opinion filed June 16, 1951.
1. HABEAS CORPUS.
Attempted appeal from order dismissing petition for writ of habeas corpus must be dismissed where no appeal bond was made or filed as required by statute (Code, sec. 9716).
2. HABEAS CORPUS.
Making and filing an appeal bond is a mandatory requisite for review in habeas corpus proceeding (Code, sec. 9716).
3. HABEAS CORPUS.
Where rendition warrant was not made a part of bill of exceptions or identified by signature of trial judge, the sufficiency of warrant was beyond scope of legitimate review on appeal from order dismissing petition for habeas corpus to prevent extradition, and, where the only error assigned was on the sufficiency of rendition warrant, attempted appeal must be dismissed.
4. CRIMINAL LAW.
Where extrinsic matters, which can only be made part of the record by bill of exceptions, appear in the transcript without proper authentication, they cannot be considered by reviewing court but will be stricken out when called to its attention.
FROM HAMILTON.WALTER O'MILLINUK, of Chattanooga, for complainant.
KNOX BIGHAM, Assistant Attorney General, for defendant in error.
Habeas corpus proceeding by the State on the relation of Flora Britt on behalf of her minor daughter, Virginia Hix, against Frank J. Burns, Sheriff of Hamilton County. The Criminal Court, Hamilton County, L.D. MILLER, Judge, entered an order dismissing the petition for habeas corpus and relator appealed. On motion of the State to dismiss the appeal, the Supreme Court, GAILOR, Justice, held that appeal bond was a mandatory requisite for review and that sufficiency of rendition warrant which was not made a part of bill of exceptions or identified by signature of trial judge was beyond the scope of legitimate review.
Appeal dismissed and judgment affirmed.
This record presents an attempted appeal from an order of the Criminal Court of Hamilton County, dismissing a petition of habeas corpus, filed by Flora Britt on behalf of her minor daughter, Virginia Hix, who was held in custody by the Sheriff of Hamilton County on a rendition warrant of the Governor of the State of Tennessee, issued on demand from the State of Florida.
On motion of the State, we find it necessary to dismiss the appeal on two grounds:
(1) No appeal bond was made or filed as required by Code Sec. 9716. This element of an appeal in a habeas corpus case is a mandatory requisite for review. State ex rel. Strong v. Strong, 175 Tenn. 291, 133 S.W.2d 996.
(2) The only error assigned is on the sufficiency of the rendition warrant, which document is not made a part of the bill of exceptions, nor identified by signature of the Trial Judge. The sufficiency of the warrant is, therefore, beyond the scope of our legitimate review. Fine v. State, 183 Tenn. 117, 191 S.W.2d 173.
"When extrinsic matters, which can only be made part of the record by bill of exceptions, appear in the transcript without proper authentication, they cannot be considered by this court, but will be stricken out when called to its attention." Battier v. State, 114 Tenn. 563, 568, 86 S.W. 711, 712.
The motion of the State is sustained, the appeal dismissed and the judgment affirmed.
All concur.