
    Ex parte BOSTICK.
    (No. 4527.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Affidavits &wkey;>© — Bill of Exceptions— Oath Before Attorney.
    A purported bystanders’ bill of exceptions sworn to before the defendant’s attorney was not properly verified and cannot be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    2. Habeas Corpus <&wkey;25(l) — Right to Writ.
    Where one indicted for gaming gave bail bond which was declared forfeited, and he thereafter, being in jail, offered to plead guilty, but the plea was refused, ho was not entitled to discharge on writ of habeas corpus.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 21, 28, 30.]
    3. Criminal Law &wkey;>273 — Plea of Guilty— Refusal to Accept — Continuance — Effect.
    The mere fact that a criminal case has been continued for the term is not sufficient ground for refusing to take a plea of guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634.]
    4. Criminal Law &wkey;980(l) — Plea of Guilty —Necessity of Evidence.
    In a prosecution for the small misdemeanor of gaming, evidence is not required under plea of guilty as in felony cases.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2493, 2496.]
    5. Criminal Law &wkey;273 — Plea of Guilty— When Taken.
    The court, when an accused is confined in jail without trial, and especially when he wants to plead guilty to a misdemeanor, ought to accept the plea.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 631, 632, 634.]
    Appeal from Rockwall County Court; James W. Reese, Judge.
    Habeas corpus on the relation of Frank Bostick. From an adverse judgment, the relator appeals.
    Case dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

The record discloses that the grand jury returned an indictment charging relator with gaming. It was transferred to the county court. When the case was called in the county court, relator not responding, his bond was forfeited. Later, perhaps the same day, he was rearrested and placed in jail. He applied for a writ of habeas corpus, which was granted. It recites after the forfeiture of the bond, and when court had adjourned for the day, and the judge was in his office, he was brought, at his own request, before the county judge to enter a plea of guilty. The judge declined to hear his plea without the consent of the county attorney, who was present. The county attorney declined, and the judge gives as his reason for not hearing the case that it had been continued for the term, and the county attorney would not consent to take it up. He refused to make any order in the case, or to place anything upon the minutes of his court; at least such is the recital in a bill of exceptions undertaken to be proved up by by-standers.

The bystanders signed and swore to the bill, but they took their oath' before the attorney in the ease. Under the long line of authorities of the Supreme Court and Court of Criminal Appeals this does not verify the bill in such manner as it can be considered. Outside of the bill of exceptions, we find no notice of appeal in the transcript. It is a peculiar case in several respects.

The theory evidently of relator was that by resorting to the writ of habeas corpus, the judge having refused to take his plea of guilty, he would be entitled to his discharge. As presented by this record, we think that could not be of sufficient importance to make that demand. However, it is worthy of some remark or expression of wonder that the plea of guilty was not taken. The party was in jail and was desirous of pleading guilty.

The mere fact that the case had been continued for the term is not a sufficient reason for not taking the plea of guilty. It was a small misdemeanor, and evidence was not required as in felony cases under a plea of guilty. But as the matter is presented we do not think we can give relief asked.

The court, of course, when an accused is confined in jail without trial, and espeeially when he wants to plead guilty, and it is a misdemeanor, ought to accept the plea of guilty. Just why this.was not done is not shown, except the judge states that he did not accept the plea because the case had been continued. There was no order entered continuing the case, but there was an order entered forfeiting the bond.

As the case is presented, we find no sufficient reason why the applicant should be discharged, but cases may arise when such prayer may be granted.

The case is dismissed. 
      T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     