
    Ex parte YOUNG.
    (No. 5783.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. Habeas corpus &wkey;>113(9) — Judge must CERTIFY TO RECORD ON APPEAL FROM HABEAS CORPUS PROCEEDING IN VACATION.
    Under Code Or. Proc. art. 900, a trial judge, who tries a habeas corpus case in vacation, where an appeal is taken, must himself certify to the record; it not being sufficient that it is certified to by the clerk.
    2. Habeas corpus <&wkey;113(9) — Appellant PERMITTED TO' WITHDRAW TRANSCRIPT FOR PROPER CERTIFICATION.
    On motion by the Assistant Attorney General to dismiss an appeal from a habeas corpus proceeding in vacation, in that the record was certified by the clerk, and not by the judge, as required by Code Or. Proc. art. 950, a request of the accused that, if the state’s motion is sustained, he be permitted to withdraw the transcript, in order that it may be certified to by the judge, will be granted.
    Appeal from District Court, Montgomery County; D. F. Singleton, Judge.
    Application for habeas corpus by Floyd Young to obtain bail. From a decision remanding him to custody without bond, he appealed.
    On motion to dismiss appeal. Motion sustained, with leave to accused to withdraw transcript for proper certification.
    C. W. Nugent, of Galveston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Applicant was charged with murder, and resorted to a writ of habeas corpus to obtain bail. Upon the hearing the trial judge remanded him to custody without bond.

The transcript of the record is certified only by the district clerk. The statute (article 950, C. C. P.) provides that where a habeas corpus was heard in vacation, as in this case, the transcript may be prepared by any one under the direction of the judge, but must be certified by the judge. It is not sufficient to be certified by the clerk. Ex parte Malone, 35 Tex. Cr. R. 297, 31 S. W. 665, 33 S. W. 360; Ex parte Calvin, 40 Tex. Cr. R. 84, 48 S. W. 518; Ex parte Overstreet, 39 Tex. Cr. R. 468, 46 S. W. 929.

It seems to be necessary under this statute that the judge, when he tries a habeas corpus in vacation and an appeal is taken, must himself certify to the record. It is not sufficient to be certified by the clerk, as would be the' case if the proceeding was had in term time. Because of the failure of the judge to certify to the correctness of the transcript, as required by article 950, supra, the Assistant Attorney General moves to dismiss the appeal. It seems this motion is well taken, and must be sustained.

Applicant asked, in case the state’s motion is sustained, that he be permitted to withdraw the transcript, in order that the trial judge may certify to same in accordance with the statute. We are of opinion that this is a reasonable and proper request, and same will be granted. Pie may therefore withdraw the transcript, and have the trial judge certify to the correctness of the proceedings.

The motion of the Assistant Attorney General is sustained.  