ON MOTION FOR REHEARING.
GRAVES, Judge.In his motion for a rehearing relator evidences much dissatisfaction with the original opinion herein in language that would probably best be left unsaid. Much of relator’s dissatisfac*47tion seems to be based upon the proposition that he wanted an early trial on the matter charged and an opportunity to predicate an indictment for perjury against the prosecuting witness provided such witness swore certain things.
There are many irregularities present in the record. It is shown therefrom that the' County Court was in regular session at the time of this purported trial, and we have often held that the writ of habeas corpus cannot be substituted for a trial upon its merits. See Ex Parte McCuistian, 88 S. W. (2d) 479, 129 Tex. Cr. R. 464; Ex Parte Holland, 183 S. W. (2d) 975, 147 Tex. Cr. R. 619. In the present case, appellant himself stated that the purpose of his purported writ was to show his innocence and not to determine the amount of bond.
Evidently the County Judge took the pleadings on their face and made his ruling therefrom. The caption of the record shows a regular term of the court to be in session; it then shows a complaint and information charging a misdemeanor offense; it next shows a capias issued to the sheriff for the arrest of relator, such capias showing the return of the sheriff in which it is said:
“Came to hand the 28 day of April A. D. 1947, at 3 o’clock P. M., and executed on the 28 day of April A. D. 1947, at 4:20 o’clock P. M., by arresting the within named A. L. Lowery at Nacogdoches in Nacogdoches County, Texas, and taking bond, which is herewith returned.”
There then follows in the transcript an application of relator for the issuance of the writ of habeas corpus. This is followed by a waiver of the sheriff of the issuance and service of a writ of habeas corpus, and an agreement to present relator before the county judge, at which time said judge, upon presentation of the request for the issuance of the writ and the different documents above outlined, remanded relator to the custody of the sheriff pending the execution of a bond for $300.00 to which relator excepted and gave notice of appeal to this court.
We think that this record shows that no writ of habeas corpus was ever awarded to relator. The sheriff has not the power to grant such writs nor the power to waive the issuance thereof, and no such writ appears in the record. The writ, had it been granted, could not be used for the purpose of establishing guilt or innocence.
Again, in the pleading requesting the writ, it is shown that *48relator was not in custody at such time and therefore was not entitled to the writ.
If relator was dissatisfied with the trial court’s failure to grant him his writ, he had a further remedy. See Ex Parte Lynn, 19 Tex. App. 120; Ex Parte Gregory, 20 Tex. App. 210.
We think the relator’s reasons for asking for this writ were insufficient to cause its granting, the procedure therein was incorrect, many of his allegations in his motion are not evident from the record, and the pleadings on their face evidence the correctness of the trial judge’s action in refusing to entertain this application. The matter is shown by such pleading to be moot, and we adhere to the views expressed in our original opinion herein.
The motion for rehearing is therefore overruled.