
    Ex Parte McGRUDER.
    No. 20260.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1938.
    E. P. Lipscomb, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

This is an appeal from an order of the Hon. S. G. Tayloe, Judge of the District Court of the 45th Judicial District of Texas, remanding the appellant to- the custody of the Sheriff of Bexar County.

It appears from this record that appellant was convicted in the Justice Court of Precinct No. 1 of said county on a complaint charging him with being a vagrant, and his punishment was assessed at a fine of $200 which he failed to pay.

Thereupon the Justice- of the Peace in and for said Precinct issued a capias pro fine, under and by virtue of which he was taken into custody by the Sheriff and confined in the County jail. Appellant then applied to the Hon. S. G. Tayloe for a writ of habeas corpus, and upon a hearing thereof the court remanded him, as aforesaid.

Appellant does not attempt to attack the validity of the law under which he was prosecuted and convicted, but asserts that the evidence did not justify his conviction. He cannot substitute for an appeal the proceedings provided by writ of habeas corpus. He had an adequate legal remedy by appeal to the county court, and if the evidence produced was such as not to warrant his cpnviction of the offense charged, the presumption obtains that the county court would have respected the law and given him the proper relief. It is well settled that a writ of habeas corpus can never serve the office of an appeal. See Ex parte Lovel, 101 Tex.Cr.R. 576, 276 S.W. 428; Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  