
    Ex parte HOARD.
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1911.)
    1. Criminal Daw (§ 260) — Justice of the Peace — Jurisdiction After Appeal.
    Where, after conviction before a justice of the peace, relator appealed to the county .court, which, after continuing the case, forfeited relator’s appeal bond, and subsequently, on motion of the county attorney, the ease was dismissed from the docket, the jurisdiction of the justice having been terminated by the appeal, he had no authority, the case not having been sent back with a writ of procedendo, to enter the writ of execution or capias pro fine on the judgment of conviction.
    [Ed. Note. — Eor other cases, see Criminal Law, Dec. Dig. § 260.]
    2. Criminal Law (§ 147) — Limitations.
    Under Code Or. Proc. 1895, art. 219, providing that for all misdemeanors an indictment or information may be presented within two years from the commission of the offense and not afterwards, a complaint for a misdemeanor filed after the period of limitations had expired was without authority of law.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 147.]
    3. Habeas Corpus (§ 29) — Scope of Writ-Arrest After Expiration of Limitations.
    Where relator was arrested on a complaint for a misdemeanor after limitations had run, he was entitled to his discharge on habeas corpus.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 24; Dec. Dig. § 29.]
    Appeal from Dallas County Court, at Daw; W. F. Whitehurst, Judge.,
    Habeas corpus, on relation of Walter Hoard, alias Buddy George. From a judgment quashing the writ, relator appeals.
    Reversed, and order for relator’s discharge.
    Claude C. Westerfeldt and Wiley & Baskets for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   • DAVIDSON, P. J.

The relator was convicted in the justice court for the offense of gaming. Plis fine was fixed at $10. A commitment was issued about the 23d of September, or between that date and the 1st of October, and he was put to work to pay out the fine.

The facts show: That Arrington, constable of precinct No. 7, Dallas county, made an affidavit against relator on the 28th day of June, 1909, charging relator with shooting craps on that date, and testifies they were both against relator for the same transaction. That he had made two affidavits, the latter one on the 16th of August, 1911, and these affidavits were made upon his personal knowledge that he saw relator shooting craps, and saw him bet more than one time, in fact several times on the same game. The justice of the peace of that precinct was introduced, and stated that he had .been justice of the peace since the 1st of December, 1910, and that R. S. Greer was his predecessor; that the criminal docket kept by his predecessor was turned over to him as part of the records of his office when he took charge of it. The other docket was one he had kept himself since he had been holding the office, and that the entries on these dockets were correct. The complaint against the relator for shooting craps was signed by Jim Arrington, under which he was convicted, and dated August 16, 1911, and filed in his court on that date. Some days after that judgment was rendered against relator, and a capias pro fine subsequent to that was issued to execute the judgment. The affidavit of the 28th of June, 1909, was introduced and identified, and charged relator with playing at a game with dice called craps on the 26th of June, 1909, and filed on 28th of June, 1909.

This case, after conviction, was appealed to the county court of Dallas county, and filed in that court on the 6th of July, 1909. The judgment of the justice court of June 28, 1909, was also introduced, showing the conviction. It was then shown that the ease was filed in the county court of Dallas county on the 6th of July, 1909; that on September 17th, in the county court, an order was entered passing the case on account of relator’s sickness; that was dated under this record 1910. The bond was forfeited and the alias capias ordered issued. In April, 1911, the case was dismissed on motion of the county attorney from the county court of Dallas county. Relator then introduced the minutes of the justice court of precinct No. 7 of Dallas county, as identified by Justice Grigsby, which shows the complaint was filed on the 16th day of August, 1911, made by Arrington against relator charging him with gaming. The warrant issued on the 16th day of August, and was placed in Arring-ton’s hands and executed on the 16th of August. Subpoena was issued on that date, and returned executed that date. On the 22d of August the case was heal'd, and relator waived a jury and entered a plea of guilty, and the court assessed his punishment at $10, and judgment followed. On the 23d of September, by virtue of a capias pro fine from that court, relator was taken into custody, and was held as a convict.

The contention is that this judgment is void, and that there is nothing under which relator can be held, and under the writ of habeas corpus he is entitled to a discharge. We suppose that relator brought both of these matters to the attention of the court in the writ below and here in order to demonstrate that the execution would not be valid under either. It will be observed that the writ of execution or capias pro fine was issued by the justice of the peace. We will not enter into a discussion of this question, for it is not debatable that, when the case was appealed from the justice court to the county court, it passed from his jurisdiction, and he had no further authority to make any order in the case, unless the county court dismissed the appeal for want of a sufficient appeal bond, and had sent it back to the justice court with writ of procedendo. This was not done. On the contrary, after continuing the ease a while, appellant’s appeal bond was forfeited, and subsequently the county attorney dismissed the case from the docket. This became a finality in the county court, and there existed under that process no further case against him. The justice court could take no further jurisdiction of that matter because there was no authority in law for him to do so. Ex parte McNamara, 33 Tex. Cr. R. 363, 26 S. W. 506. Then it is apparent that relator is held by virtue of the latter conviction, which occurred in August, 1911. The complaint was made against him in August, judgment entered in August, and capias pro fine issued about the 23d of September, 1911. The latter case then was filed against appellant more than two years after the offense was committed. It is unnecessary here ,to repeat dates, as they have been previously given.

Article 219 of the Code of Criminal Procedure provides: “For all misdemeanors an indictment or information may be presented within two years from the commission of the offense, and not afterwards.” It is plain, then, from the reading of this statute that, if a prosecution does not occur within two years from the time of its commission, there can be no prosecution. This is the period of limitation fixed by the Legislature. They had authority to fix the period of limitation. This court has no authority to change it. And there is no authority in law to prosecute any citizen of Texas for the violation of the law after the period of limitation has intervened. White v. State, 4 Tex. App. 488; Hickman v. State, 44 Tex. Cr. R. 533, 72 S. W. 587; Monford v. State, 35 Tex. Cr. R. 237, 33 S. W. 351; Temple v. State, 15 Tex. App. 315, 49 Am. Rep. 200. To the same effect are the decisions of some of the other states. Nelson v. State, 17 Fla. 197. There is also a case cited as being in the 20th Florida Reports. Robinson v. State, 20 Fla. 804. This case was then barred at the expiration of two years from the time of the commission of the offense in June, 1909. The latter complaint was filed and prosecution instituted nearly two months after the expiration of the period of limitation, and therefore without authority of law. It is said in White v. State, supra, and in all the cases where the question has arisen, not only in this state, but in other states, that it need not be plead in bar at the time of the trial. This was expressly held in White v. State, supra, and in Boughn v. State, 44 Neb. 891, 62 N. W. 1094.

We are therefore of opinion that relator resorted to the proper remedy in applying for the writ of habeas corpus, and that it should have been sustained by the trial court.

For the reasons indicated, the judgment is reversed and the relator is ordered discharged.  