
    Ex parte WILKINSON.
    (No. 9965.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1925.)
    1. Habeas corpus <§=34 — Only remedy for release from custody in default of peace bond.
    As Constitution provides for no appeal from magistrate’s order requiring peace bond, in proceeding under Code Cr. Proc. 1925, arts. 79, 80, only remedy for release from custody in default of bond is by habeas corpus proceeding! under Const, art. 5, § 16.
    2. Habeas corpus <®=>I9 — Judge of county court may grant relief if facts do not support order requiring peace bond.
    Under Const, art. 5, § 16, judge of county court may inquire whether facts support order of justice of the peace requiring peace bond and grant release from custody in default of bond by writ of habeas corpus, if facts are found insufficient.
    3. Habeas corpus <@=>II3(!3) — Judgment denying writ reversed, and petitioner’s discharge ordered, where only evidence brought up showed order requiring peace bond to be without support.
    Where state introduced no evidence, on hearing of petition for writ of habeas corpus, in support of order of justice of the peace requiring peace bond, in default of which petitioner was held in custody, and petitioner’s evidence, showing order to be without support, is only evidence before appellate court, latter must reverse judgment merely reducing amount of bond and order petitioner’s discharge.
    Appeal from Floyd County Court; E. C. Nelson, Jr., Judge.
    Petition by Annie Wilkinson for writ of habeas corpus. From a judgment refusing discharge, petitioner appeals.
    Reversed, and petitioner’s discharge ordered.
    Mathews & Folley, of Floydada, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

By an order of the justice of the peace, appellant was required to enter into bond in the sum of $500, conditioned that she would not commit a threatened assault upon one Velma Still, in default of which bond she was remanded to the custody of the sheriff! of Floyd county to be confined in jail. (This proceeding was under articles 79 and 80, C. C. P. 1925 Revision.) Appellant was taken into custody under this judgment. She applied to the county judge of Floyd county for writ of habeas corpus, alleging in her petition that she was illegally restrained of her liberty by virtue of such order, because the bond was excessive, and because the facts were not sufficient to authorize the justice of the peace to require bond in any sum.

The statute provides for no appeal from the order of a magistrate requiring a peace bond. If appellant had any remedy, it was by resort to habeas corpus proceeding. Section 16, art. 5, of the state Constitution empowers judges of the county courts—

“to issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court, or any other court or tribunal inferior- to said court.”

It was under this provision of the Constitution that appellant sought relief. Upon the hearing, the learned trial judge held that he only had authority to inquire whether the bail required was excessive. He found the amount to be excessive and reduced it to $250, 'but declined to investigate the truth of the matters upon which the order of the justice of the peace was based. From the judgment of the county judge, this appeal is taken.

We think the learned trial judge fell into error in holding that he had no right to inquire whether the facts supported the order entered by the justice of the peace. Otherwise* one who might be held in custody by a purely arbitrary act of such officer would be without remedy. The principle involved is quite similar to that where a party is held in contempt of court and seeks enlargement by appeal to the writ of habeas corpus. It now appears to be well settled in this state that under such circumstances the court has the right to examine into the truth of the facts upon which the order of contempt was based, and, if they are found to be insufficient, relief will be granted. See Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111; Ex parte Taylor, 34 Tex. Cr. R. 591, 31 S. W. 641; Ex parte Parker, 35 Tex. Cr. R. 12, 29 S. W. 480, 790; Ex parte Duncan, 42 Tex. Cr. R. 661, 62 S. W. 758.

Upon the hearing before the county judge, the state introduced no evidence as to the facts upon which it relied to support the order of the justice of the peace, but rested solely upon the order itself. Appellant offered testimony which the court declined to consider, but which is brought before us by proper bills. This evidence shows the order of the justice of the peace to be without support.

This being the only evidence before us, this court has no option but to reverse the judgment of the county judge and order the discharge of appellant, which is accordingly done. See Ex parte Firmin, 60 Tex. Cr. R. 222, 131 S. W. 1116; Ex parte Foster, 5 Tex. App. 625, 32 Am. Rep. 577; Ex parte Erwin, 7 Tex. App. 288; Ex parte Cole, 14 Tex. App. 579. 
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