The exhibits which were made a part of the appellant’s application for the writ of habeas corpus show that he had been tried and convicted in the district court of Parker county, of the crime of theft of cattle. The sheriff’s return showing that he held him in custody by virtue of such judgment of conviction, and the evidence fully sustaining such return, the court refused to discharge him, but remanded him back into custody, and he appeals to this court.
In the case of Ex parte Fuller and Wimberly, 19 Texas Court of Appeals, 341, the rule announced by our Supreme Court in ' Ex parte Ezell, 40 Texas, 451, was adopted. That rule is as follows: ‘'When the application for the writ of habeas corpus shows that the applicant is restrained of his liberty by a sheriff, acting under a commitment issued by a district court after trial and judgment of conviction for a felony, the writ will not be awarded.” Under this rule the court below would have been fully justified in refusing to grant the writ in the first instance. Having, however, granted it when the party was not entitled to it, and having refused to discharge him from custody, we do not feel called upon to inquire into the validity of the action, but affirm the judgment.
Affirmed.