
    Ex parte LAWSON.
    (No. 3524.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    1. Habeas Corpus <5&wkey;4 — Appealable Orders — Suspension of Sentence — Setting Aside Order — Appeal.
    An appeal lies from an order setting aside an order suspending sentence during good behavior.
    LEd. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 4; Dee. Dig. <&wkey;4J
    2. Habeas Cobpus <&wkey; 30 — Review op Voidable Judgment.
    Habeas corpus does not lie to review a judgment not void, but voidable only, as a judgment which the court had jurisdiction to render cannot be collaterally attacked.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. &wkey;>30.]
    3. Habeas Corpus <&wkey;4 — Suspension op Sentence — Setting Aside — Review op Facts.
    Ordinarily the court will not inquire on habeas corpus into facts on which the court sets aside a suspension of sentence during good behavior, but it is otherwise where the right of appeal is denied, and the judgment recites facts showing its action was unauthorized.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. <&wkey;>4.]
    4. Criminal Law <&wkey;>1001 — Suspension of Sentence — Setting Aside.
    It is only on final judgment of conviction in another case that suspension of sentence during good behavior can be set aside, and it cannot be done pending appeal from such conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. Dig. <&wkey;> 1001.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Mrs. S. E. Lawson was convicted of felony. Suspension of sentence was set aside, and appeal denied, and she brings habeas corpus to review the judgment.
    Reversed, and relator discharged.
    J. S. Stephenson and S. H. Sanders, both of Center, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State
   HARPER, J.

It appears from the record in this case that relator was convicted of a felony at the August term, 1914, of the district court of Shelby county, and her punishment assessed at one year’s confinement in the state penitentiary, in cause No. 5007; the sentence, on the recommendation of the jury, being suspended during good behavior.

It further appears that at the February term of the district court of Shelby county appellant was convicted of three other felonies, and her punishment assessed at one year’s confinement in the state penitentiary-in cause No. 5102, two years’ imprisonment in cause No. 5080, and one year’s confinement in the state penitentiary in cause No. 5081. In these three cases she filed a motion for' a new trial, and when the motion was overruled she gave notice of appeal in each of these cases to this court, and they are now pending, and will be heard when the transcripts are received by this court.

On the day the motions for new trial were heard in causes Nos. 5102, 5080, and 5081 the court caused process to issue and be served on relator to show cause why the order suspending the sentence in cause No. 5007, rendered at the September term, 1914, should not be set aside and relator sentenced to serve the term in the penitentiary fixed by the jury in that cause. On the hearing on that motion relator insisted that the court had no .authority to set aside the order suspending the sentence in cause No. 5007, as the judgments in causes Nos. 5080, 5081, and 5102 were not final judgments, by reason of the fact that she had perfected an appeal in each of said causes to this court The court overruled this plea and set aside the order suspending the sentence in cause No. 5007, and sentenced relator in said cause. From this order of the court it is made to appear by bill of exceptions No. 1 relator undertook to give notice of appeal from the order setting aside the suspension of the sentence, but the court refused to recognize the right of appeal from such order, and refused to enter same of record. In this the court was in error. In Bierman v. State, 164 S. W. 840, we held that there was no right of appeal from a judgment suspending the sentence until the court set aside the suspension of the sentence, but that the right of appeal accrued whenever the court set aside the order suspending the sentence. Had the court not denied the right of appeal from the order setting aside the order suspending the sentence, no right to sue out a writ of habeas corpus, in our opinion, would have existed.

For it is the rule that, if the judgment is not void, but voidable only, no relief can be granted under the writ of habeas corpus; for, if the court had jurisdiction to render the judgment in, question, it cannot be collaterally attacked. In Bailey on Habeas Corpus it is said:

“The courts, in treating the question of jurisdiction, usually use the terms ‘of the subject-matter’ and ‘of the person.’ These expressions are generally well understood by the profession, and scarcely need to be specifically defined; yet a treatise would not be considered complete without it. It was stated by one court: ‘By jurisdiction of the subject-matter is meant the nature of the cause of action and of the relief sought, and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. The power to render the judgment or decree which the court may undertake to make in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.’
“It was stated by another court that ‘jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, or which is claimed to have arisen, under that general question.’ One court has jurisdiction in criminal cases, another in civil cases; each in its sphere has jurisdiction of the subject-matter; yet the facts, the acts of the party proceeded against, may be the same in a civil case as in a criminal case; as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property under false pretenses. We should not say that the court of civil powers had jurisdiction of the criminal action, nor vice versa. So that there is a more general meaning to the phrase ‘subject-matter,’ in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, abstract, question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power. Jurisdiction of the subject-matter is the power lawfully conferred to deal with the subject involved in the action.”

In the law governing a suspension of sentence the court is authorized to set aside the suspension of the sentence upon a given state of facts, and we ordinarily would not inquire into whether or not the facts authorized the court to set aside the suspension of the sentence, but in this case the court, in his order setting aside the suspension of the sentence and sentencing relator to confinement in the penitentiary, adjudges as follows:

“It is therefore also ordered, adjudged, and decreed that the punishment heretofore in this case adjudged against her, the said Mrs. S. E. Lawson, shall begin and operate at the expiration of the term of such previous judgment and sentence of conviction, and the said defendant is now remanded to jail to await the further orders of the court, and, the said Mrs. S. E. Lawson having excepted to the sentence heretofore rendered in said causes Nos. 5080, 5081, arid 5102, and given notice of appeal to the Court of Criminal Appeals of the state of Texas, it is further ordered by the court that the execution of this sentence in said cause No. 5007 be and is suspended until the decision and judgment of the Court of Criminal Appeals in said causes Nos. 5Ó80, 5081, or 5102, or either of them, shall be received, pending which said defendant, Mrs. S. E. Lawson, is remanded to jail.”

It is thus made to appear by the recitals of the order setting aside the suspension of sentence that the judgments in causes Nos. 5080, 5081, and 5102 are not final judgments, and, the right of the court to set aside the suspension of the sentence by the law being dependent upon a final conviction for a felony in another case, the judgment in and of itself authorizes this court to take cognizance of the matters in question under a writ of habeas corpus, and especially would this be true in a case where the right of appeal is denied.

Ordinarily, as we have said, if the court had found, as a matter of fact, that the facts existed which authorized the setting aside of the suspension of the sentence (the court having authority under the law to set aside the suspension of the sentence), we would not go behind the judgment so finding, as the right of appeal from such judgment existed. But in this case the right of appeal was denied, and, in addition thereto, the court, in his judgment setting aside the suspension, of the sentence, recites such facts that would show a want of authority to set aside the suspension of the sentence, and we are of the opinion we can review the matter in question, and, in our opinion, the court had no authority to set aside the suspension of the sentence in cause No. 5007 until the judgment in causes Nos. 50S0, 5081, and 5102 had become final, or one of them had become final by judgment of affirmance of this court.

It is only upon final judgment of conviction of a felony in another case that the right to set aside the judgment suspending the sentence arises in the trial court; and, no final judgment in causes Nos. 5080, 5081, and 5102 having been rendered, the court did not have the authority to set aside the judgment suspending the sentence in cause No. 5007 at the time it did do so.

If the judgments in causes Nos. 5080, 5081, and 5102 should' be affirmed by this court, or either of them, then the court would have the right and authority to set aside the suspension of the sentence in cause No. 5007, and it should do so.

The judgment is reversed, and relator discharged from imprisonment in cause No. 5007, but this order shall ha-ve no effect in causes Nos. 5080, 5081, and 5102.

DAVIDSON, J.

I concur. This opinion is correct in holding the trial court was without authority to set aside suspended sentence under the stated facts. This he could only do after final conviction in another proper case. The other convictions are not final. 
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