
    Ex parte LOZANO.
    (No. 6034.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1920.)
    1.Habeas corpus @=113(9) — Transcript must bear certificate of judge, where proceedings are in vacation.
    Under Code Cr. Proc. 1911, art. 950, where proceedings for habeas corpus are in vacation, the transcript, on relator’s appeal from refusal to issue the writ, to be considered, must bear the certificate of the judge.
    
      ■2. Habeas corpus @=113(3) — Statute authorizing appeal contemplates decision after hearing.
    Code Cr. Proc. 1911, art. 950, the statute authorizing an appeal in proceedings for habe-as corpus, contemplates that it shall be taken from a decision of the trial judge or court after a hearing.
    Appeal from District Court, El Paso County; W. D. Howe, Judge. *
    Application for habeas corpus on behalf of Fernando Lozano. From a judgment refusing the writ, relator appeals.
    Appeal dismissed.
    J. F. Weeks and M. M. Winningham, both of El Paso, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant made application to the judge of the Thirty-Fourth judicial district of the state for writ of habeas corpus. The judge refused to issue the writ, and from the refusal the appellant has sought to perfect his appeal.

The order appears to have been made in vacation. Article 950, C. G. P., provides for appeal in a matter of this) character, but says:

“This transcript, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the transcript may be prepared by any person, under the direction of the judge, and certified by such judge.”

This statute has been held uniformly to require that, where the proceeding is in vacation, the transcript, to be considered, must bear the certificate of the judge. Ex parte Malone, 35 Tex. Cr. R. 297, 31 S. W. 665, 33 S. W. 360; Ex parte Overstreet, 39 Tex. Cr. R. 468, 46 S. W. 929; Ex parte Young, 219 S. W. 1102. The state, through the Assistant Attorney General, objects to the transcript upon the ground that it does not comply with the statute, in that it does not bear the certificate of the judge.

Moreover, we infer from the proceedings that the procedure in the instant case does not confer jurisdiction upon this court on appeal, for the reason that the statute authorizing an appeal contemplates that it shall be taken from! a decision of the trial judge or court after a hearing. Ex parte Ainsworth, 27 Tex. 731; Ex parte Strong, 34 Tex. Cr. R. 309, 30 S. W. 666.

The appeal is ordered dismissed. 
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