
    Ex parte EVANS.
    (No. 11631.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied March 21, 1928.
    1. Habeas corpus <⅜=>4 — Party, not appealing from conviction in justice court for violating tick eradication law, may not secure review by habeas corpus.
    Party, convicted in justice court for violating tick eradication law through drifting or driving cattle from tick infested territory into territory engaged in process of tick eradication, and making no appeal, or effort to appeal ease, to county court, may not secure review of conviction by habeas corpus.
    2. Habeas corpus <⅝=>3 — Court of Criminal Appeals will not, on habeas corpus, take Jurisdiction of matters properly belonging to other courts until due efforts have been made following prescribed course.
    Court of Criminal Appeals will not, on ha-beas corpus, take jurisdiction of matters which, following orderly procedure, properly belong to other courts until and unless it is shown that due efforts have been made following the course prescribed by law.
    3. Habeas corpus ⅞=4 — Habeas corpus may not usurp function of appeal.
    Habeas corpus will not be permitted to usurp'function of appeal.
    4. Criminal law <s=»l3 — Statute penalizing violation of tick eradication law is not so vague and unintelligible as to be unenforceable (Acts 39th Leg. [1925] c. 122, § 10).
    Acts 39th Leg. (1925) c. 122, § 10, providing penalty for violation of tick eradication law, held not so vague and unintelligible as to be unenforceable.
    Appeal from Franklin County Court; B. O. Shurtleff, Judge.
    Application by Jess Evans for habeas corpus. From a judgment remanding the relator to custody, he appeals.
    Affirmed.
    R. T. Wilkinson, Jr., of Mt. Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

It appears that appellant was convicted in the justice court of precinct No. 1, Franklin county, for a violation of the tick eradication law, in that he drifted or drove three head of cattle from Red River county, same being tick infested territory, into Franklin county, which was territory then engaged in the process of tick eradication. A jury trial was had. No appeal or effort to appeal the case to the county court of Franklin county appears in the record.

Asserting that the complaint charged no offense, and that the verdict was so informal and incomplete as to not form the basis of a proper judgment, appellant sued out his writ of habeas corpus in the county court of Franklin county, where, upon a hearing, he was remanded, and now brings this appeal. We perceive no reason why appellant did not appeal his case to the county court of said county which had appellate jurisdiction thereof, and in which court the presumption is that the law be, and would have been, followed. The trial there would have been de novo, and the necessary presumption is that, if the complaint was insufficient, a motion to quash same would have been sustained; also that, if the complaint had not been quashed, and a trial had been had, the judgment and verdict would have been in conformity with law. This court uniformly declines to take jurisdiction of matters which, following orderly procedure, properly belong to other courts until and unless it is shown that due efforts have been made following the course prescribed by law. We have always declined to permit the writ of habeas corpus to usurp the function of an appeal. We perceive nothing in this case to differentiate it from those in which this rule has been announced. ’ Ex parte Oates, 91 Tex. Cr. R. 79, 238 S. W. 930; Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936; Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637; Ex parte Garcia, 90 Tex. Cr. R. 288, 234 S. W. 892; Ex parte Drane, 80 Tex. Cr. R. 543, 191 S. W. 1156; Ex parte Meggs, 99 Tex. Cr. R. 391, 269 S. W. 790; Ex parte Stanford, 100 Tex. Cr. R. 559, 271 S. W. 924; Ex parte Lovel, 101 Tex. Cr. R. 576, 276 S. W. 428.

There appears in the record a contention on the part of appellant that the law ‘under which this prosecution was had is vague and unintelligible, and therefore unforceable. Said prosecution is under section 10, e. 122, General Laws, Thirty-Ninth Legislature. We do not think the contention of appellant' sound in this regard.

Believing the matters here attempted to he raised all to be properly for the county court of Franklin county on appeal, and that this court must decline to consider the matters here presented by habeas corpus, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing, appellant apparently relies largely on Ex parte Ballard, 87 Tex. Cr. R. 460, 223 S. W. 222. In later cases it was recognized that the holding in Ballard’s Case was out of line with the well-established announcements of this court, and we declined to follow it in Ex parte Garcia, 90 Tex. Cr. R. 287, 234 S. W. 892; and Ex parte Matthews, 96 Tex. Cr. R. 497, 258 S. W. 477. 'In addition to authorities cited in our original opinion, see Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645; Ex parte Cox, 53 Tex Cr. R. 240, 109 S. W. 369; and other eases collated in Ex parte Jarvis (No. 11277; Tex. Cr. App.) 3 S. W. (2d) 84, opinion delivered February 15, 1928.

The motion for rehearing is overruled. 
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