
    Ex parte JONISCHKIES.
    (No. 5933.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1920.
    On Motion for Rehearing, Nov. 10, 1920.)
    Habeas corpus <®=»25(l) — Will not issue on application of party shown by motion of Attorney General never to have been in custody.
    Where the Assistant Attorney General moves to dismiss application for habeas corpus, accompanying the motion with affidavit of sheriff of county alleged by relator to have him in custody that he has never had relator in his custody in any way, there being also attached to the motion the official certificate of the county clerk that no commitment or warrant of any land has ever issued for relator, the writ will be denied, and the application dismissed, since the writ of habeas corpus will not issue unless the party applying for it appears to be illegally restrained in some manner.
    Application for habeas corpus on behalf of Henry Jonischkies.
    Application dismissed.
    J. F. Murray, of Runge, for applicant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

At a former day applicant presented his application for a writ of habeas corpus, setting up therein that he was illegally restraineR of his liberty by the sheriff of De Witt county, Tex. The request of applicant was granted, and a writ issued, returnable to this term of this court. Our Assistant Attorney General has filed a motion to dismiss relator’s application, accompanying said motion with the affidavit of the sheriff of De Witt county that he has never had applicant in his custody either by virtue of any writ or commitment or in any way whatsoever. There is also attached to said motion of the Assistant Attorney General the official certificate of the county clerk of De Witt county that no commitment or warrant of any kind has ever issued for applicant. Inasmuch as a writ of habeas corpus will not be issued unless the party applying therefor appears to be in some manner illegally restrained, this writ will be denied and the application dismissed. Numerous authorities might be cited, in which this court has declined to take jurisdiction of petitions for writs where it is made to appear that ⅝6 applicant is not actually in custody, nor in any manner restrained of his liberty. In the light of these authorities, and upon the affidavit of the said sheriff and the certificate of the said clerk, the application will be dismissed.

On Motion for Rehearing.

Relator has filed a motion for rehearing, asking that we set aside our order dismissing his application for writ of habeas corpus, which motion is accompanied by the affidavits of relator and his attorney, in both of which appears a substantial statement of some kind of an agreement or verbal understanding had by them with the sheriff, by which he permitted the relator to go at large without the issuance of any commitment or the making of any bond. This is clearly illegal. Our statute provides the mode of procedure after conviction, and until and unless it appears that this relator has been arrested and is held in custody by some officer, this court will decline to take jurisdiction of his case by granting a writ of habeas corpus.

The motion for rehearing is overruled. 
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