
    Ex parte DRANE.
    (No. 4336.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1917.)
    1. Habeas Corpus <&wkey;31 —• Voidable Pro-CEEDINOS.
    Code Cr. Proc. 1911, art. 63, provides that when two or more courts have concurrent jurisdiction of an offense against the penal laws, the court in which an indictment or complaint is first filed shall retain jurisdiction of the offense to the exclusion of all other courts. Vernon’s Ann. Code Cr. Proc. 1916, art. 160, provides that the writ of habeas corpus is the remedy to be used when any person is restrained of his liberty. Appellant was charged by complaint with a violation of the Pure Food Law and gave bond for his appearance. Subsequently affidavit and information were filed against him in another court charging him with the same offense, and the pending case was dismissed. Held, that while under article 63 prosecution should have been in the court in which it was first filed, this fact would not entitle the appellant to his discharge on habeas corpus when arrested on process issued from the court in which the case was subsequently filed, but his rights and remedies could only be enforced by proper proceedings upon the trial of the case, since the writ of habeas corpus cannot serve to discharge the appellant on account of errors or irregularities which render the proceedings voidable merely, but only lies to secure a release where the proceedings are absolutely void.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 27.]
    2. Indictment and Information <&wkey;3 — Necessity of Indictment — Constitutional and Statutory Provisions.
    Under Const, art. 1, § 10, requiring indictment only in felony cases, and White’s Ann. Code Cr. Proc., art. 436, providing that misdemeanors may be prosecuted by either indictment or information, and Vernon’s Ann. Code Or. Proc. 1916, art. 642, providing that under certain circumstances a prosecution shall be dismissed and the bail discharged, unless indictment or information are presented, an indictment was not required to charge a violation of the Pure Pood Law (Vernon’s Ann. Pen. Code 1916, arts. 699, 700), but prosecution by information was sufficient to justify retention of the accused.
    [Ed. Note. — Por other cases, see Indictment and. Information, Cent. Dig. §§ 9-23.]
    3. Habeas Corpus <&wkey;92(l) — Evidence—Burden oe Proof.
    In habeas corpus for the discharge of applicant arrested on process in an action charging violation of the Pure Pood Law, where bail was granted by the trial court, the sheriff was not charged with the burden of proving the applicant’s guilt, but was required only to show that the applicant was not illegally held by showing that he was charged by complaint and information of an offense within the jurisdiction of the court, and that he was held by the sheriff under process from that court.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 96.]
    4. Habeas Coiípus ¡&wkey;30(2) — Grounds for Relief — 'Invalidity of Indictment.
    The Pure Pood Law (Vernon’s Ann. Pen. Code 1916, arts. 699, 700) provides that no person, firm, or corporation shall manufacture for sale, have in his possession with intent to sell, offer or expose for sale, or sell or exchange any article of food which is adulterated, and that an article shall be' deemed to be adulterated if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength. An information charged that applicant had in his possession with intent to sell and offered and exposed for sale butter which had been adulterated by being mixed with water. Held, that the prosecution is not upon a void information so as to authorize its attack by habeas corpus proceedings, since such matters as go to the manner and form of the information are not available on application for writ of habeas corpus, but must be raised by motion or plea in the trial court.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. § 25.]
    Appeal from Galveston County Court at Law; J. C. Canty, Judge.
    Application by J. W. Drane for a writ of habeas corpus against the Sheriff of Galveston County. Prom a judgment refusing his application for a discharge from custody to discharge him, applicant appeals.
    Affirmed.
    T. C. Tumley and V. M. Clark, both of Galveston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant prosecutes this aqjpeal from a judgment in the county court at law of Galveston county, refusing to discharge him on hearing of his application for writ of habeas corpus.

Appellant was charged with a misdemean- or growing out of an alleged violation of the Pure Pood Law. Complaint was filed against him in the corporation court of the city of Galveston, and he gave bond for his appearance before that court. Subsequently, affidavit and information were filed against him in the county court at law of Galveston county, charging him with the same offense, and the case pending in the corporation court was dismissed.

His contention is that under these facts the county court at law had no jurisdiction to try him. He insists also that prosecution by information was not sufficient to justify his detention, but that an indictment would have been required. He contends also that the sheriff, who had taken him in charge under process issued in the county court at law, was charged with the burden of proving his guilt, and that the mere introduction of the process, together with the complaint and information, did not justify his detention, and further that the complaint charged no offense.

In the case of Vaughn v. State, 32 Tex. Cr. R. 407, 24 S. W. 26, and in several cases cited therein, this court held that there was no way to prevent the state from filing a case in two courts, each of which had jurisdiction of the person and subject-matter, and subsequently dismissing the case in one of the courts and trying-it in the other. Subsequent to the time these decisions were rendered, article 63, C. C. P., was amended so as to provide that when two or more courts have concurrent jurisdiction of any offense against the penal laws of this state, the court in which an indictment or complaint shall first be filed shall retain jurisdiction of said offense to the exclusion of all other courts. In obedience to this statute, the prosecution in this case should have been in the court in which it was first filed. This fact, however, would not entitle the appellant to his discharge on habeas corpus when arrested on process issued from! the court in which the case was subsequently filed. His rights and remedies relating thereto could only be enforced by proper proceedings upon the trial of the case. Pittcock v. State, 73 Tex. Cr. R. 1, 163 S. W. 972; Wilks v. State, 66 S. W. 787. The writ of habeas coipus cannot serve to discharge the applicant on account of errors or irregularities which render the proceedings voidable merely, but lies to secure a release where the proceedings are absolutely void. Vernon’s C. C. P. p. 103, art. 160, note 3. It is not available to establish former jeopardy, conviction, or acquittal. Id., note 11.

His claim that the prosecution failed because prosecuted by information rather than by indictment cannot be sustained. The Constitution (article 1, § 10) only requires felony cases to be presented by indictment; article 436, White’s Ann. Code of Crim. Proc., provides that misdemeanors may be prosecuted by either indictment or information; and article 642, Vernon’s Ann. Code of Crim. Proc., provides that under certain circumstances a prosecution shall be dismissed and the bail discharged, unless indictment or information are presented.

Under his proposition that the respondent was charged with the duty of proving his guilt appellant cites the case of Ex parte Newman, 38 Tex. Cr. R. 165, 41 S. W. 628, 70 Am. St. Rep. 740. That was a capital case, and it was held that the mere introduction of the indictment was not sufficient authority for the court to bold the accused without bail, but that to justify such action evidence was required to show that the proof was evident of the defendant’s guilt of a capital offense. This rule does not apply where bail is granted by the trial court, as was done in this case. The respondent was required only to show that the appellant was not illegally held, and this obligation was discharged by showing that he was charged by complaint and information with an offense within the jurisdiction of the county court, and that he was held by the sheriff under process from said court. The question of the innocence or guilt of the appellant would be relegated to the trial of his case on its mterits. Ex parte Muse, 74 Tex. Cr. R. 476, 168 S. W. 520; Ex parte Jennings, 76 Tex. Cr. R. 116, 172 S. W. 1143; Ex parte Kent, 49 Tex. Cr. R. 12, 90 S. W. 168. The principle controlling in the above cases distinguishes the practice in this state from that pursued in the California case cited by appellant (Ex parte Sternes, 82 Cal. 245, 23 Pac. 38), where an inquiry into the facts was held on a habeas corpus proceeding.

The information on which appellant was held is as follows:

“That in the county of Galveston, state of Texas, on or about the 21st day of November, A. D. 1916, J. W. Drane, in the county and state aforesaid, did then and there have in his possession with intent to sell, and did then and there offer and expose for sale a cei’tain article of food, to wit, butter, which said butter was then and there adulterated, in this, to wit, that then and there a certain substance, to wit, water, had then and there been mixed and packed with said butter so as to reduce and lower and injuriously affect its quality and strength. * * * ”

Appellant contends that this information charged no offense. If it in law charged no offense, it would be the duty of this court to discharge the appellant If, however, it charges an offense, but does so in a defective manner, then this court would not discharge him. Such matters as go to the manner and form of informations are not available on application for writ of habeas corpus, but to be considered if raised by motion or plea in the trial court. Ex parte Beverly, 34 Tex. Cr. R. 634, 31 S. W. 645; Ex parte Williford, 50 Tex. Cr. R. 417, 100 S. W. 919; Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369; Ex parte Webb, 113 S. W. 545; Ex parte Wolf, 55 Tex. Cr. R. 231, 115 S. W. 1192; Ex parte Cain, 56 Tex. Cr. R. 539, 120 S. W. 999; Ex parte Knapp, 57 Tex. Cr. R. 411, 123 S. W. 597; Ex parte Hendrix, 64 Tex. Cr. R. 452, 142 S. W. 570.

The so-called Pure Food Law (articles 699 and 700, Vernon’s Penal Code) provides that:

“No person, firm or corporation, shall within this state manufacture for sale, have in his possession with the intent to sell, offer or expose for sale, or sell or exchange any article of food * * * which is adulterated * * * within the meaning of this act. * * * ”

And further:

“That for the purposes of this act, an article shall be deemed to be adulterated * * * in the case of food, (1) if any substance has been mixed and packed with it so as to reduce or lower or injuriously affect its quality or strength.”

This act has been held by this court constitutional. Focke v. State, 65 Tex. Cr. R. 353, 144 S. W. 267; Green v. State, 66 Tex. Cr. R. 664, 148 S. W. 311. Other cases passing upon the power of Congress and the Legislatures of various states to pass similar laws are: Plumley v. Mass., 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; State v. Hutchinson, 56 Ohio St 82, 46 N. E. 71; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452; State v. Campbell, 64 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419; State v. Groves, 15 R. I. 208, 2 Atl. 384; Meyer v. State, 134 Wis. 156, 114 N. W. 501, 14 L. R. A. (N. S.) 1061. It has been held that the addition of water was an adulteration (Commonwealth v. Schaffner, 146 Mass. 512, 16 N. E. 280), and that the indictment need not allege the quantity of water.

The statute under which appellant is prosecuted being valid, and the indictment charging an adulteration by the use of water, the prosecution is not upon a void information so as to authorize its attack by habeas corpus proceeding. Whether other averments are necessary when tested by motion to quash is a question which we are not called upon to determine.

It follows from the foregoing that in the opinion of the court the judgment of the court below should be affirmed, and it is so ordered. 
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