
    Ex parte JONISCHKIES.
    (No. 6099.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1921.
    Rehearing Denied March 2, 1921.)
    1. Municipal corporations <&wkey;>639(l) — Complaint charging mere failure to observe traffic ordinance insufficient.
    A complaint charging the owner of an automobile with failing to drive on the right-hand side of the traffic pole on a street was insufficient to charge driving on the wrong or left side of the pole.
    2. Municipal corporations <&wkey;639(l) — Complaint charging violation of ordinance must state facts.
    A complaint charging violation of an ordinance must state facts which, if true, amount to a violation of the law.
    On Motion for Rehearing.
    3. Habeas corpus &wkey;o30(2) — Conviction by county court subject to attack for insufficiency of complaint.
    Defendant convicted in county court of violating an ordinance can attack the judgment of conviction by original application to the Court of Criminal Appeals for writ of ha-beas corpus on ground that the complaint was void, in that it charged no act which could be held penal.
    Original application for writ of habeas corpus by Henry Jonischkies. Petitioner released from custody.
    J. F. Murray, of Runge, for appellant.
    Tom Cheatham, Co. Atty., of Cuero, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an original ha-beas corpus by which relator seeks release from confinement by virtue of a capias pro fine issued from the county court of De Witt county. The record discloses that relator was convicted in the corporation court of Yorktown and appealed his case to the county court of De Witt county, where he was again convicted; capias pro fine issuing as a result. The ground of this application is that the complaint against relator is void, in that, admitting the truth of its allegations, no offense is set forth, and that consequently all oilier proceedings herein are also void. There being no appeal further than the said county court, wé have issued this writ.

The charging part of said complaint is as follows:

“Did then and there unlawfully and willfully violate a traffic ordinance by failing to drive his automobile on right-hand side around traffic pole in Main street, of city of Yorktown, Tex., contrary to the ordinance of said city of Yorktown.”

Attached to said application appears a copy of the traffic ordinances of said city.

Therein we find no ordinance penalizing the owner of an automobile who fails to drive same on the right-hand side of the traffic pole on Main street, in said city. If we found such ordinance we should hold it void. The owner of a car cannot be punished for his failure to operate it or his failure to drive it on any particular street, or failure to drive around any particular side of any traffic pole. In other words, this relator was not charged with driving or operating a car which he then and there drove on the wrong or left side of a given point, but is simply charged with a failure to drive it on the right-hand side. Every word charged in the complaint might be true of each member of this court, or of relator, if he left his car in his garage, or if he had never driven it on Main street, for he would then “fail to drive it on the right-hand side of the traffic pole on Main street.”

It is fundamental that the complaint must state facts which, if true, amount to a violation of the law. For the reason that the complaint in the instant case does not measure up to this fundamental requirement, it is void.

The relief prayed for is granted, and the sheriff of De Witt county is directed to release relator from the restraint of said ca-pias pro fine.

On Motion for Rehearing.

The able prosecuting attorney of De Witt county has filed a motion for rehearing on behalf of the state in this case. It is insisted that we erred in permitting an attack upon the judgment of conviction herein because of the insufficiency of the complaint, and authorities are cited in the motion as sustaining, the proposition that the sufficiency of the complaint cannot be determined by habeas corpus. An examination of the authorities cited will disclose that it is uniformly held by this court that the sufficiency of a complaint or indictment cannot be tested( by habeas corpus before a trial in the proper court below; the presumption being that when the case is up before such court the law will be followed, and if the complaint is fatally defective same will be then adjudged. Other authorities cited correctly hold that defects of form which should have been raised in the trial court cannot be tried out here by resort to the writ of habeas corpus after conviction. We are cited to no authority and know of none which would hold that this court was without power or precedent by writ of habeas corpus to review an indictment or information after judgment in order to determine whether or not same is void. In cases such as the one now before us, where, by the provisions of our statute, the right of appeal extends no further than to the county court, we have always held that this court will inquire by this writ into the question of whether or not the state’s pleadings are void. In the instant ease we confined ourselves to that question. An ordinance of the city of Yorktown which in terms made it penal to fail to drive an automobile on the right-hand side of a given traffic post could not be upheld as definite or certain or measuring up to the requirements of a statute penalizing a citizen. When the act, whether of the Legislature of a state or of a city, under which a prosecution is had, is followed in express terms or substance by the complaint in any given case, it is sufficient to bring in review before this court both the pleadings and the law under which the prosecution is had, to attack the pleading as being void, in that same set out no offense against the law. We did not discuss the question of the sufficiency of the state’s pleading in the instant case from any standpoint of mere form. Said pleading appears to be in entire harmony with the language of the ordinance which relator was charged with having violated, but our conclusion was that the complaint was void because its language, if admittedly true, charged relator with no act which could be held penal, and which, if admittedly made penal by the terms of an ordinance using the same language as said complaint, would necessarily involve our opinion that the ordinance was also void.

The state’s motion is overruled. 
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