Ex parte Killam

ON MOTION FOR REHEARING.

BEAUCHAMP, Judge.

Appellant files a motion for rehearing in this case, a small portion of which has any bearing on the question decided in the original opinion. He does say that the court erred in holding that it had no jurisdiction.

If counsel fails to understand the original opinion, we do not know how to make ourselves understood by him. If he does *609understand it, his efforts to aid in a reconsideration have been fruitless. He attack's Aft. 53, C. C. P. as being unconstitutional and void on the ground that it denies and deprives appellant of her right to the writ of habeas corpus contrary to the Constitution of the United States and of Texas. His argument on the subject would inevitably lead to the contention that the State of Texas has no authority to create a court which does not have appellate jurisdiction in every kind and character of criminal case. Such conclusion will not be reached. The conclusion which we have reached is that even though a wrong has been done, and even though the writ of habeas corpus is available to effect a release of relator, the Legislature has not provided for the appeal of such question, under the circumstances of the instant case, to this court. We have not said that appellant has no right to resort to the Federal Courts for relief on the Federal question because it is not within the province of this Court to discuss the jurisdiction of Federal courts. We go no further than to say that this Court does not have jurisdiction and the reasons are plainly set forth in the original opinion. We have not said and we do not now conclude that the court in which the original prosecution was instituted properly convicted appellant. It would be out of place for this Court to decide one way or another on a question not properly before it. So holding, every other question discussed in the original presentation and in the motion for rehearing will be passed without consideration.

The motion for rehearing is overruled.

HAWKINS, Presiding Judge.

Upon the request of Attorney for appellant an order was entered on June 8th, 1942, directing the Clerk of the Court of Criminal Appeals to recall the mandate, in order that appellant might file an application for Writ of Certiorari to the Supreme Court of the United States.

Appellant’s application for writ of Certiorari was denied October 19, 1942, as evidenced by “Order on Petition for Writ of Certiorari” issued by the Clerk of the Supreme Court of the United States and filed in the Office of the Clerk of this Court on October 23, 1942.

Therefore, it is directed by this Court that the order heretofore made on June 8th, 1942, recalling mandate be set aside *610and the Clerk of the Court of Criminal Appeals of the State of Texas is hereby directed to issue mandate to have the judgment of this Court executed.