Relator is evidently an inmate of and confined in the State. penitentiary at Huntsville, Texas, and he sued out a writ of habeas corpus before Hon. Max Rogers, District Judge, who granted the said writ and sent the same to this court in accordance with the Acts of the 48th Legislature, Chapter 233, *page 354.
It is shown from the record herein presented that relator was charged in the district court of Atascosa County, Texas, by indictment, with the theft of property over the value of $50.00; that previous thereto relator was convicted of a similar offense alleged to have been committed on the same day, in the above county. It is further alleged that relator had been theretofore convicted on May 5, 1941, in the district court of Nolan County, Texas, of the offense of theft, which sentence is now being served; that relator was again convicted in July 1936, at Hobart, Oklahoma, of the offense of burglary; again relator was convicted in the United States District Court at Kansas City, Missouri, in February, 1938, of a violation of the Dyer Act, and sentenced to a term of two years in the Federal penitentiary at Leavenworth, Kansas; again, during the month of December, 1939, relator was convicted in the United States District Court at Dallas, Texas, of a violation of the Dyer Act, and sentenced *Page 200 to a term of a year and a day in the Federal prison at Ft. Leavenworth, Kansas.
To this indictment relator pleaded guilty, after a showing in the judgment of a proper warning, and after having been found guilty as charged, and as pleaded by him, he was sentenced by the court to a life term in the State penitentiary. Relator's record from the prison also appears in the papers.
Relator alleges that because the punishment for felony theft, Art. 1421, P. C., being confinement for not less than two nor more than ten years in the penitentiary, the life term assessed him in the Atascosa County case is void; that he has served more than two years minimum sentence under Art. 1421, supra, and he is therefore entitled to his discharge from the State prison.
Relator fails to mention or discuss Art. 63, P.C., wherein it is said:
"Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."
The indictment herein charges, besides the original theft, the commission upon the part of relator of six other felonies less than capital; the judgment of conviction finds relator "guilty of the offense charged against him," and the sentence conforms to the judgment of guilt, and we find no complaint relative thereto. If the indictment charged an instant felony, with six prior convictions less than capital, with a finding of guilt thereof, then we think the trial court acted properly in invoking the provisions of Art. 63, P. C. rather than Art. 1421, P. C.
There is no attack made upon the validity of the indictment, and none would be heard herein on a proceeding in habeas corpus. See 21 Tex. Jur., 427, wherein it is said: "It is settled also that use of the writ (of habeas corpus) will not be permitted as a substitute for appeal, error or certiorari," and see authorities there cited.
The indictment is not attacked herein as void, the only point of attack being that the judgment and sentence should have utilized the penalty of felony theft rather than Art. 63, P. C., relating to an habitual offender. *Page 201
We think the judgment and sentence correctly invoked Art. 63, supra, as applicable in relator's confinement. Relator is therefore remanded to the custody of the penitentiary officials under service of his sentence as provided by law.
ON MOTION FOR REHEARING.