
    Ex parte WELBURN.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Habeas Corpus (§ 113) — Proceedings— Petition — Eeeect.
    The application or petition for- a writ of habeas corpus is a mere pleading, and is not evidence of the facts therein stated.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115 ; Dec. Dig. § 113.]
    2. Habeas Corpus (§ 113) — Appeai^Statement of Pacts — Necessity.
    On appeal from a judgment remanding the applicant for a writ of habeas corpus into custody, where there was no statement of facts, it must be held that the judgment of the lower court was correct, and that there was ample evidence to sustain it; the application or petition not being evidence of the facts therein stated.
    [Ed. Note. — Por other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Application by W. G. Welburn for a writ of habeas corpus. Prom the judgment committing relator to the custody of the sherifli, he appeals.
    Affirmed.
    R. J. Dillard and J. H. Moore, both of Lubbock, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

In the corporation court of the town of Lubbock appellant, on proper complaint, was prosecuted, tried in said court, and convicted for maintaining a nuisance under the city ordinance, and fined $10. He thereupon, in open court at the time, gave notice of appeal to the county court of Lubbock county, and filed an appeal bond in said corporation court. Thereupon the bond and all the other original papers were sent to and filed in the county court, and the cause properly docketed therein. Later the case was regularly tried before the county court and jury, and he was again convicted and fined $10; the proper judgment being entered thereon. Not paying the judgment and costs, the proper writ was issued, and he was taken in custody by the sheriff, and held to collect said fine and costs. On February 10, 1913, he sued out a writ of habeas corpus before the district judge of said Lubbock county. The judge heard all the evidence and remanded him to the custody of said sheriff, from which judgment and order of the district judge he has prosecuted this appeal.

The sole contention here is that, as appellant gave a defective appeal bond from the corporation court to the county court, the county court acquired no jurisdiction whatever, and the trial and judgment rendered in the case on the county court trial are therefore void. The judgment of the district judge clearly shows that in the said habeas corpus proceedings before him all the parties appeared, and the court heard the evidence and argument of counsel, and remanded Welburn to the custody of the sheriff under the said proper process by which he was held. It has uniformly been held by this court that the application or petition for a habeas corpus is a mere pleading, and is not evidence of the allegations therein. There is no statement of facts in this case, nor is it in any way shown what the evidence before the district judge was. The judgment must therefore bé held correct, and that there was ample evidence to sustain it. Ex parte Naill, 59 Tex. Or. R. 141, 127 S. W. 1031; Ex parte Robertson, 63 Tex. Cr. R. 280, 140 S. W. 98; Ex parte Thomas, 145 S. W. 601; Ex parte Basham, 145 S. W. 619; Ex parte Northern, 63 Tex. Cr. R. 275, 140 S. W. 95.

The judgment is therefore affirmed.  