
    DE SILVA v. STATE.
    (No. 8561.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.)
    1. Constitutional law <@=»55, 56 — Legislature . may. regulate appeals to Court of Criminal . Appeals.
    Legislature has power to make proper exceptions to right of appeal, and regulate appellate jurisdiction of Court of Criminal Appeals.
    2. Criminal law <@=>1023(1) — No appeal lies from verdict and judgment of trial court finding convict sane.
    Judgment on verdict under Vernon's Ann. Code ,Cr. Proc. 1916, aTt. 1030, as to trial of issue of sanity after conviction, finding convict sane is not appealable to Court of Criminal Appeals under Const, art. 5, § 5, Vernon’s Ann. Code Or. Proc. 1916, arts. 68, 86, 87, 895, 895a, appeals being limited to persons convicted of offenses and those denied release under writ of habeas corpus.
    
      Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Newt De Silva, after conviction for murder, raised issue of insanity. Prom judgment on verdict finding him sane, lie appeals.
    Appeal dismissed.
    Howth, Adams, O’Piel & Hart, of Beaumont, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

In March, 1922, the appellant was convicted of the offense of murder committed earlier in that year and the death penalty assessed against him. The issue of insanity was not raised at the trial, but subsequently, in July, 1923, because of the affidavit filed by his mother in the district court in which he had been tried for murder, the jury was called upon in accordance with the statute, to determine whether or not the appellant was insane. See Vernon’s Ann. C. C. P. 1916, tit. 12, c. 1. After the motion to change the venue was overruled, the issue was tried, and in November, 1923, the jury, by a verdict rendered and received by the court, determined the appellant to be sane. Prom the judgment entered in the district court declaring him sane, this appeal is attempted, with various complaints of the rulings of the trial court during the procedure.

The concluding article of the statute mentioned reads thus:

“When,- upon the trial of an issue of insanity,' it is found that the deféndant is sane, the judgment of conviction shall be enforced as if no such inquiry had been made.”. Article 1030, C. C. P.

We feel constrained to dismiss the appeal .for the reason that this court is without jurisdiction to entertain it. In article 5, § 5, of the Constitution of Texas, the appellate jurisdiction .of the Court of Criminal Appeals is declared to be “coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.” The court and the judges thereof have the power to issue the writ of habeas corpus under such regulations as may be prescribed by law. It is within the power of the Legislature to make proper exceptions to the right of appeal and to prescribe regulations in regard to the appellate jurisdiction of this court. See Johnson v. State, 42 Tex. Cr. R. 103, 58 S. W. 69. In the Legislative enactments found in our Code, appeals to this court are restricted to persons convicted of offenses and those denied release under the writ of habeas corpus. See Russell v. State, 37 Tex. Cr. R. 503, 36 S. W. 1070; Harris’ Tex. Const. p. 375; also C. C. P. arts. 68, 86, 87, 895, and 895a.

The proceeding from which the present appeal is attempted comes within none of the statutory or constitutional provisions conferring jurisdiction upon this court. This was definitely and clearly stated by Judge Will-son in writing the opinion in the case of Darnell v. State, 24 Tex. App. 6, 5 S. W. 522, and was forcefully emphasized in the opinion written by Presiding Judge Hurt in Ex parte Quesada, 34 Tex. Cr. R. 116, 29 S. W. 473. The rule was reasserted in the recent case of Ex parte Morris, 96 Tex. Cr. R. 256, 257 S. W. 894. See 38 L. R. A. p. 585, note. It is not within the power of this court to extend to the appellant the relief which he seeks.

The appeal is dismissed. 
      
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