
    Ex parte HOWARD.
    (No. 10357.)
    Court of Criminal Appeals of Texas.
    March 2, 1927.
    Rehearing Denied June 24, 1927,
    1. Habeas corpus <&wkey;7 — Application for second writ of habeas corpus, stating that after first hearing damaging testimony had been eliminated from applicant’s case, held to show applicant in position of having discovered new testimony (Code Cr. Proc. 1925, art 171).
    Under Code Cr. Proc. 1925, art. 171, authorizing a second writ of habeas corpus after indictment, where application states that after first application was refused important testimony has been obtained, which was not in applicant’s power to produce at former hearing, an application for a second writ of habeas corpus, stating that since hearing on first application applicant’s case has been before Court of Criminal Appeals, and that important and damaging testimony against applicant has been eliminated by that court and held inadmissible and immaterial, held to show defendant in same position as though he had discovered new evidence after first hearing.
    2. Habeas corpus <&wkey;l 13(12)— Conviction and death sentence held to preclude further consideration of appeal from denial of habeas corpus to obtain bail.
    Defendant’s conviction and sentence to death, before hearing on appeal from judgment denying application for habeas corpus for purpose of obtaining bail, held to preclude further consideration of question whether bail was properly denied.
    3. Habeas corpus <&wkey;>l 13(12) — Appellate court will consider matters issuable on appeal, which have been settled in trial court after appeal taken.
    Appellate court will give consideration on proper showing by state to matters issuable on appeal, which have been settled in trial court since appeal was taken.
    On Motion for Rehearing.
    4. Habeas corpus <&wkey;>!13(9) — On appeal from denial of habeas corpus to obtain bail, certified copy of judgment of conviction held properly before court.
    On appeal from order denying second application for habeas corpus for purpose of obtaining bail, appellate court properly considered certified copy of judgment of conviction, entered in trial court after appeal was taken.
    Appeal from District Court, Ward County; Chas. Gibbs, Judge.
    Habeas corpus proceeding by P. W. Howard for the purpose of obtaining bail. From an order denying the application, applicant appeals.
    Affirmed.
    Fryer & Cunningham and Harper & Howard, all of El Paso, for appellant.
    C. L. Yowell, of El Paso, and Sam D. Stin-son, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

This is an appeal from an order of the district court of Ward county denying applicant’s second application for habeas corpus for the purpose of obtaining bail.

The state’s attorney with this court objects to the Consideration of this appeal because it appears from the record that same is a second application made after indictment, and that none of the statutory exceptions to the r.ule denying the right to make such second application appear. He also objects to the consideration of this appeal for the reason that, since bail was refused in the trial court, this case has been tried in the court below and the death penalty assessed.

Our statutes grant the right to a second writ of habeas corpus after indictment, upon a sufficient showing in the application of the existence of either of the grounds set out in article 137 or article 171, 1925 O. O. P. That ground named in article 137 is not here involved. Article 171, supra, provides that the second writ may issue when the application states that, since the first one was refused, important testimony has been obtained which was not in applicant’s power to produce at the former hearing. It is further provided that the testimony referred to shall be set forth in the application. The application herein states that it is a second one, and as reason for making same it is set up that, since the hearing of the first application, applicant’s case has been before the Court of Criminal Appeals of Texas for review, and “that important and damaging testimony against applicant has been by said court eliminated from his ease and held inadmissible and immaterial.” Applicant then proceeds to set out the testimony referred to and to state that it was before the trial court on the hearing of his first application for this writ. He contends that, in view of the opinion of this court, holding such testimony inadmissible, he occupies the same attitude under the law as though he had discovered evidence after the first hearing. We think the contention is legally sound, and if the remaining testimony before the court, after eliminating that held by us incompetent, should not be sufficient to amount to proof evident, bail should be granted.

However, in this case, the state advances, as reason why bail should not be granted herein, the fact that since the hearing upon this second application applicant has been tried on this charge in the court below and given a death sentence. It has been the uniform holding of this court that it will give consideration, upon proper showing by the state, to matters issuable upon appeal, which have been settled In the trial court since the appeal was taken. In Ex parte Cannon, 41 Tex. Cr. R. 76, 51 S. W. 914, an appeal was taken from a judgment rendered before indictment, refusing bail. Pending such appeal an indictment was returned against the accused. The state moved to dismiss the appeal, attaching to its motion a certified copy of the indictment against the applicant, and upon such showing this court, in an opinion by Judge Davidson, dismissed the appeal. The same holding appears in Ex parte Forney, 45 Tex. Cr. R. 254, 76 S. W. 440, Ex parte Brown (Tex. Cr. App.) 55 S. W. 814, Ex parte Kennedy (Tex. Cr. App.) 56 S. W. 921, and Ex parte McDonald (Tex. Cr. App.) 65 S. W. 188. In the instant ease the state attaches to its answer hefein a certified copy of a judgment duly rendered in the district court of El Paso county since the appeal was perfected in this case, it appearing from the copy of the judgment so attached that applicant has been' tried and found guilty of murder upon the charge involved in this habeas corpus proceeding and his punishment fixed at death. We think this effectually precludes us from further consideration of the question as to whether there appear herein facts showing proof evident.

The judgment denying bail will be affirmed.

On Motion For Rehearing.

HAWKINS, J.

In appellant’s motion we are referred to Ex parte Hill, 104 Tex. Cr. R. 403, 284 S. W. 550, as supporting the proposition that a certified copy of the judgment in a subsequent conviction should not be considered by this court Considering the question before us, it is our belief that the authorities cited in the original opinion are controlling.

The motion for rehearing is overruled. 
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