#### Ex parte MEERS et al.

No. 17901.

Court of Criminal Appeals of Texas.

Oct. 16, 1935.

Rehearing Denied Dec. 4, 1935.

William J. Gerron, of -Brady, for appellants.

A. O. Newman, Dist. Atty., of Coleman, I. J. Burns, Co. Atty., of Brady, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.

KRUEGER,'Judge.

It appears from the record before us that relators were charged by complaint filed in the justice court of precinct No. 1 of McCulloch county, with the offense of unlawfully keeping and exhibiting a gaming table and bank, to wit, a marble table. Upon a hearing before the justice of the peace, who was sitting as a magistrate, re-lators were ordered to give bond in the sum of $500 each for their personal appearance before the district court of said county, to be begun and holden on the first Monday in October, 1935, the same being the 7th day of October, 1935, to await the action of the grand jury, but in default of giving bond they be committed to jail. Thereafter they applied to the Honorable E. J. Miller, judge of the Thirty-Fifth judicial district of Texas, for a writ of ha-beas corpus by which they sought their release from custody. Upon a hearing, the judge made a similar order as that of the magistrate, to which they excepted and appealed to this court.

This court has consistently held that a writ of habeas corpus will not lie where the remedy at law is adequate, nor will it lie after indictment to prevent a trial on the merits. See Branch’s Texas P.C., Sec. 239; Ex parte Kent, 49 Tex.Cr.R. 12, 90 S.W. 168; Ex parte Adams (Tex.Cr.App.) 90 S.W. 24; Ex parte Windsor (Tex.Cr.App.) *78*S.W. 510; Ex parte Jennings, 76 Tex.Cr.R. 116, 172 S.W. 1143; Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.(2d) 84, 57 A.L.R. 82. Relators had not been tried; they had not even been indicted by the grand jury for the offense for which they were charged by complaint, yet they are seeking by means of a writ of habeas corpus to have this court determine in advance of a trial in a court of competent jurisdiction, whether the facts developed at the hearing show them guilty of an offense against the law of this state. Should re-*101lators be charged by indictment with said offense, and on trial the evidence is riot sufficient to show that an offense has been committed, the trial court will no doubt so decide. If not, then relators have the legal right to appeal to this 'court. In the case of Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.(2d) 870, this court said: “The merits of a case on the sufficiency of the evidence to show a violation of the law is not the subject of inquiry by writ of ha-beas corpus.” Relators contend, however, that there is no statute which denounces their act and the operation of their marble table as an offense. Looking to the entire record, it appears to us that relators, under the guise of questioning the validity of article 619, P.C., under which they are charged with the offense of unlawfully keeping and exhibiting a gaming table, to wit, a marble table, are in fact questioning the sufficiency of the facts to bring their act and the marble table within the purview of said article. We 'do not believe we are required in this proceeding to pass upon that question. However, if we did so we would most likely apply the rule of ejusdem generis and hold contrary, to re-lators’ contention. Inasmuch as relators have an adequate legal remedy, this court will not interfere with the jurisdiction of the trial court over the person and subject matter. Therefore the judgment granting bail in the sum of $500 to each of the re-lators, in default of which they be commit-" ted to jail, is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, Judge.

We adhere to the well-considered and supportéd rule that when the facts in any case attempted to be brought here on habeas corpus show that the controversy could have been brought here in the regular channel of an appeal, we will decline to dispose of same by habeas corpus.

In this case we have two men charged in regular form and manner before a magistrate with the commission of a felony, who, upon hearing of their cases, were bound over to await the action of the grand jury, and their bonds fixed at a reasonable amount, it not being here contended that the amounts fixed were unreason-ble. Whether said men could make such bonds is not shown, but on the same day as the order of the magistrate an application for habeas corpus was presented to a district judge, same merely alleging in general terms illegal restraint. He granted the writ and heard the matter, and remanded applicants, reciting only that in his opinion applicants were legally held. If we understand it, the question was whether the particular form of gaming table alleged to have been exhibited would be a gaming table or bank under our statute. A determination of this question would require a full development of the facts, and is entirely different in principle from Ex parte Roquemore, 60 Tex.Cr.R. 282, 131 S.W. 1101, 32 L.R.A.(N.S.) 1186, relied on by appellants in their motion. We Jhink the case correctly disposed of in our original opinion, and that every proposition involved could and should be fully developed upon a trial and brought here by the regular route of an appeal. See Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.(2d) 84, 57 A.L.R. 82.

The motion for rehearing is overruled.