
    J. G. Thomas v. The State.
    1. Appeal does not lie from the refusal‘of a district judge to grant a writ of habeas corpus.
    
    
      2. See case held insufficient to authorize the district judge to admit to bail, under Paschal’s Digest, Article 2609, providing that a person in legal' custody “may be admitted to bail when it appears that any species of confinement will endanger his life.”
    Appeal from Johnson. Tried below before the Hon. Charles Soward.
    This is an appeal from an order refusing the writ of habeas corpus, on the application of Johnson, who was confined pending his appeal from a conviction for assault with intent to murder.
    No brief filed for appellant.
    
      Browne, for the State, cited Paschal’s Digest, Article 3185; 13 Texas, 79, Brill v. The State.
   Reeves, Associate Justice.

The opinions of the court are not entirely uniform on the point whether a review of a decision on habeas corpus independently of statutory provisions can be had by appeal. The weight of'authority seems to be that it cannot, and that an appeal does not lie, because the judgment is not final, and the party is not concluded from applying again. (Hurd on Habeas Corpus, 566; Yarbrough v. The State, 2 Texas, 519.)

The Code of Procedure provides for an appeal where the decision is against the application. (Article 3183.)

In Ex Parte Ainsworth it is held that this article only applies after a hearing, and not to a refusal to grant the writ, and the appeal was dismissed. (27 Texas, 731.)

Under the provisions of. the code this court cannot revise the opinion of the court or judge on incidental questions arising on the hearing of the application for the writ. The appeal must be heard upon the facts and law arising upon the record, and such judgment must be given as the law and nature of the case requires. The revision of the court is upon the transcript of the proceedings, and the judgment is certified to the officer holding the party in custody,- and not remanded to the court or judge whose decision may be appealed from. (1 Pas. Dig., Arts. 3220, 3221, 3222, 3225.)

Where the application for the writ is refused and there is no testimony, there would be nothing for the revising power of this court to act upon on appeal for bail.

In the present case it is not perceived that the court erred in view of anything contained in the record. The affidavits accompanying the petition fail to make a case that would bring the applicant within the terms of Article 2609, if entitled to relief on other grounds. No opinion is expressed by the physicians as to what length of time in close confinement would probably develop the disease. The application was ex parte, on affidavits without cross-examination or notice, so far as the transcript shows. The applicant had been convicted, but it is not shown that the conviction was illegal, as alleged in his petition. He applies for bail without showing that a removal to some other place would not be a sufficient protection, if his condition of health should make it necessary. And it is only when any species of confinement would endanger his life that bail may be taken under the above article.

As presented, the appeal must be dismissed.

Dismissed.  