Relators have filed a motion for rehearing requesting us to pass upon the "merits" of their case, by which we understand they desire us to determine whether the judgment of conviction in the Justice Court of Gillespie County was void.
Relators rely largely on Ex Parte Cain, 86 Tex.Crim. R.,217 S.W. 386. The proceeding there was seeking the release of a juvenile from the training school. The application for the writ of habeas corpus set out various grounds violative of the statutory procedure in such cases and which, if true, would have rendered the judgment committing the juvenile void. The following language in the opinion is particularly relied on by relators. "Any allegation of facts in the application, which if sustained, would show a void judgment, would admit proof of such facts." In the present application no facts are stated which, if true, would render the judgment void. The only averment is a conclusion that relators are "illegally restrained of their liberty * * * by virtue of a certain writ and order alleged to be a capias pro fine." The record contains no complaint against relators in the justice court and no judgment of which this Court can take cognizance. The evidence offered by relators upon the habeas corpus hearing was rejected upon objection by the State as an attempt to attack the judgment collaterally, but is brought forward in a bill of exception. As heretofore pointed out, there are no averments in the application for the writ which would authorize the reception of the evidence offered. The State made no effort to meet the proffered testimony, apparently relying upon the capias pro fine, which *Page 311 we held invalid. The evidence found in the bill of exception, if left unchallenged by the State, in a proper proceeding might raise some question as to the validity of the judgment of the justice court, but as we find the record before us we are of opinion the order made originally is as far as we may safely go.
The motion for rehearing is overruled.