Counsel for the appellant has presented an ingenious brief combating the decision reached on the original hearing asserting in effect that the conclusion there stated was wrong both as to the law and the facts.
"A habeas corpus proceeding is a collateral and not a direct proceeding, and is available against an order of court only in the event the order is void." (Ex parte McKay, 82 Tex. Crim. 225. )
The appellant is under conviction for a felony of which this court has jurisdiction on appeal, and no obstacle appears to the pursuit *Page 372 of that remedy. Under such conditions an attack upon the judgment by way of habeas corpus is not available. It has often been stated:
"It is a general and well established rule that when a court has jurisdiction to enter a particular order or render a given judgment, and in the exercise of this jurisdiction enters an order or judgment, regular on its face, its validity is conclusively presumed unless set aside or annulled in a direct proceeding." (Ex parte McKay, 82 Tex.Crim. R..)
See Ex parte McKay, 82 Tex.Crim. R., and precedents cited on page 225.
The appellant's conviction is for theft. John Murry was the owner of the property. He gave testimony for the State. The court instructed the jury that he was an accomplice and that his testimony without corroboration would not support the conviction. The appellant contends that the instruction that Murry was an accomplice implies, as a matter of law, that he consented to the taking of the property and therefore excludes the idea of theft. That the instruction given characterizes the judgment as void is deemed unsound. After the theft Murry may, by his conduct, for instance, of compounding the crime, have become an accomplice witness. If the position taken by the appellant were more plausible, however, no relief would be given him by way of habeas corpus. If the judgment is vulnerable, an appeal is his remedy.
A motion is made by the State to dismiss this proceeding upon the ground that the accused has appealed his case, entered into a recognizance and is at large. A ruling upon the State's motion is pretermitted.
The proper disposition of the appeal having been made upon the original hearing the appellant's motion is overruled.
Overruled. *Page 373