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opinion that the Court of Criminal Appeals, court. Upon the same principle this court will has jurisdiction to issue a writ of habeas refrain from issuing writs of habeas corpus corpus in any case where a person is illegal against restraint under orders in a civil ly restrained of his liberty. See articles 69 case because it is more orderly and expediand 160, C. C. P. Article 174 prescribes the ent that the Supreme Court should pass requisites of a petition for a writ of habeas upon such habeas corpus proceedings as are corpus, and article 175 is as follows: placed within its jurisdiction by the statute

“The writ of habeas corpus shall be granted mentioned above. So in a contempt proceedwithout delay by the judge or court receiving ing where it appears that it grows out of an the petition, unless it be manifest by the statements of the petition itself, or some documents alleged failure to observe an order in a civil annexed to it, that the party is entitled to no cause this court will refuse to grant the relief whatever."

writ relegating the party to his remedy in See articles 181 to 183, C. C. P., also. the Supreme Court. The Constitution contains the following: [4] This procedure would have been fol"The Court of Criminal Appeals and the judg- lowed in the instant case except for the fact es thereof shall have the power to issue the writ that when the application was presented it of habeas corpus, and, under such regulations did not contain a copy of the order or process as may be prescribed by law, issue such writs as may be necessary to enforce its own juris- under which the relator was held, but statdiction.” Article 5, 8 5.

ed that it could not be obtained. This was The Supreme Court also has power to is- in accord with article 174, C. C. P., which sue writs of habeas corpus in certain cases. prescribes the requisites of a petition for a Article 5, 83, of the Constitution provides: writ of habeas corpus. Since the record has

“The Supreme Court and the justices thereof been brought here it is apparent that it shall have power to issue writs of habeas corpus, does grow out of an order in a civil cause, as may be prescribed by law."

and it ought to have been presented to the And Acts 1905, p. 20 (Rev. Civil Statutes Supreme Court, but the writ having been 1911, art. 1529), provides, in substance, that issued under the circumstances mentioned it the Supreme Court or any justice thereof appears to be the duty of this court to deshall have power to issue writs of habeas cide the question raised. corpus where a person is restrained of his The facts show that the relator is an offiliberty by virtue of any order of a court or cer in a corporation known as La Union Frajudge issued in a civil cause. The effect of ternal, domiciled in El Paso county, Tex.; these constitutional and statutory provisions, that it formerly operated at the town of as the writer understands them, is that the Ysleta, in that county, but at the time the Court of Criminal Appeals is vested with transaction involved in this proceeding ocauthority to issue writs of habeas corpus in curred it was operating in the city of El all cases where a person is illegally restrain- Paso in the same county. On the 20th day ed of his liberty, and that the act of the Leg- of July, 1916, a suit was filed against it and islature vesting in the Supreme Court authori- against relator, who was one of its officers, ty to issue such writs where restraint grows which suit was prosecuted to judgment, from out of a civil case gives the Supreme Court which we take the following excerpt: concurrent jurisdiction with the Court of

"It is therefore ordered, adjudged, and deCriminal Appeals in such cases. This, we in plaintiff's original petition filed herein the

creed that the writ of injunction as prayed for understand, is the construction placed upon 20th day of July, A. Ď. 1916, be granted, and the statute by the Supreme Court; at least that the defendant, La Union Fraternal such is the intimation in Ex parte Allison, poration, and its officers, agents, servants, and 99 Tex. 464, 90 S. W. 870, 2 L. R. A. (N. S.) perpetually enjoined and restrained from using

I 1111, 122 Am. St. Rep. 653. It is also in the premises of said club, or any part thereof, harmony with the conclusion reached by this for the purpose of selling spirituous, vinous, and court in Ex parte Allison, 48 Tex. Cr. R. malt liquors, or either of them, and from keep

ing for sale therein spirituous, vinous, or malt 635, 90 S. W. 492, 3 L. R. A. (N. S.) 622, liquors, and from using the stock, means, as13 Ann. Cas. 684.

sets, and property of the said La Union Frater[2, 3] It does not follow that the Court of nal, a corporation, for purchasing, selling, and Criminal Appeals will exercise its jurisdic- dispensing intoxicațing liquors to' its members · tion by granting a writ in every application for writ of habeas corpus. The contrary Appeal was prosecuted from this judgpolicy has been declared and made necessary; ment to the Court of Civil Appeals, and the and, generally speaking, it will not issue matter has been finally determined against original writs of habeas corpus in cases relator, and the order disposing of it is not where other courts have jurisdiction to do one from which a writ of error to the Suso. Ex parte McKay, 199 S. W. 637, and preme Court would lie. cases cited. This is because primarily the The relator was cited and appeared in a functions of the Court of Criminal Appeals contempt proceeding in the court which renare appellate, and it is much more expedient dered the judgment mentioned and the hearthat habeas corpus questions be determined ing, and order was issued adjudging him by the district courts where they have juris- in contempt of said court, from which order

"Finding that it having been proven that court making the order is without power to said Ike Alderete disobeyed the said injunc-correct it or to oust the jurisdiction of this tion and final judgment on March 1, 1918, in court which attaches by issuance of the writ, this, that he sold and kept for sale intoxicating

, liquors at the premises of La Union Fraternal, by causing a commitment to be issued. This a corporation, in El Paso, El Paso county, is held in Kearby v. State, supra, and other Tex., and that he on said date used the stock, cases, and is based upon article 211, C. C. P. means, and assets of said corporation for the

The facts of this case, however, are not purpose of selling and keeping for sale and dispensing intoxicating liquors to the members of such. At the time the writ of habeas corpus said corporation, and further that said Ike was issued by this court the sheriff had in Alderete was an officer, to wit, treasurer of his possession the commitment issued on the said corporation on said 'date."

previous day, which commitment he attaches The order further fixed the punishment of to his return in compliance with article 190, relator at a fine of $100 and imprisonment c. C. P. We understand the cases cited in the county jail for three days.

above, notably the Case of Kearby, to justify [5] The agreed statement of facts sustains the inference that the right of the court makthe finding. It is obvious that the injunction ing the order to amend the process issued related to the business or occupation in which thereunder exists prior to the time that the the relator and the corporation of which he writ of habeas corpus was issued. This view was an officer was engaged, and that its effect appears to be supported by the statute (article was not to be avoided by removal to another -205, C. C. P.). In all events it occurs to us town in the same county any more than trans- that, inasmuch as the return of the sheriff ferring its business to another house in the of El Paso county, to whom the writ of habesame town would have done so.

as corpus was issued, shows that at the time [6] To hold one adjudged in contempt in the writ was issued he was holding relator custody a valid and entered order or judg- under a commitment previously issued, supment and a commitment issued thereon are ported by a valid judgment, we would not be necessary. The record discloses that on authorized to discharge the relator 'on acMarch 9th the court trying relator for con- count of the fact that before the commitment tempt stated that an order adjudging him was issued the relator had been by the sheriff guilty and fixing his punishment would be illegally restrained of his liberty. It would made, and that thereafter, on the same day, seem that the question for us to decide is after the sheriff had taken charge of relator, whether at the time the writ applied for was this order was entered on the docket, and was issued there was any illegal restraint. subsequently, on the 11th of March, merged Acting upon this view, we must order the in the judgment and spread upon the minutes. relator remanded. This judgment has been quoted from, and bears date of March 9th. This writ of habeas PRENDERGAST, J., absent. corpus was applied for and issued on March 20th. The sheriff in his return states that

On Motion for Rehearing. the relator was taken into custody by virtue MORROW. J. [8] No writ of habeas corof an oral order of the district judge of the pus was ever issued herein. An application Thirty-Fourth judicial district made in a pro- for such a writ was filed, and the order made ceeding on the docket of that court March 9, by the presiding judge releasing relator on 1916, adjudging relator in contempt; that no bail pending a decision by the court whether commitment was delivered to him until the a writ would be issued or not. The writ was 19th day of March, at which time there was refused upon the mistaken ground that the delivered to him the commitment which was order for discharge on bail was made after attached to his return and which is formal the commitment was in the hands of the and appears based on the judgment entered sheriff. This fact was gathered from the penin the minutes of the court, above referred to. cil memorandum granting the order written In the absence of a commitment relator was on the application. The order was in fact illegally restrained. Ex parte Kearby, 35 made at a time when the sheriff had no comTex. Cr. R. 531, 34 S. W. 635; Ex parte mitment for the relator in his hands, and was Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; holding him under a verbal order of the trial Goodfellow V. State, 53 Tex. Cr. R. 473, 110 judge, for which reason we were in error in S. W. 755; Ex parte Duncan, 42 Tex. Cr. R. refusing the writ, which error we now correct 672, 62 S. W. 758; Ex parte West, 60 Tex. by setting aside the order refusing it and Cr. R. 497, 132 S. W. 339; Ex parte Davis, granting the writ of habeas corpus. 48 Tex. Cr. R. 646, 89 S. W. 978, 122 Am. St. [9, 10] The judgment was rendered on Rep. 775; Ex parte Andrews, 51 Tex. Cr. R. March 9th, and a memorandum made of it. 83, 100 S. W. 376; Ex parte Kilgore, 3 Tex. It purports, as written, to have been rendered App. 247; Ex parte Coffee, 72 Tex. Cr. R. March 9th, though it appears aliunde that it 209, 161 S. W. 975; Ex parte Dena, 63 Tex. was not physically transcribed on the minCr. R. 379, 140 S. W. 346; Ex parte Ogden, utes until the 11th of March. We do not un63 Tex. Cr. R. 380, 140 S. W. 345.

derstand that there was any question of the [7] Where one is held in contempt pro- entry of the judgment nunc pro tunc involved. ceedings on a verbal order and obtains We are of opinion that the order made by this from this court a writ of habeas corpus, the court did not suspend the power of the trial court to have written on its minutes the judg-, ous in which this has been declared. See ment it had rendered. The order was an ob- cases cited in Miller v. State, 200 S. W. 391, stacle to any interference with the liberty of motion for rehearing; Ex parte Singleton, the relator by virtue of the judgment, or any 72 Tex. Cr. R. 123, 161 S. W. 123; Ex parte process issued thereunder pending the dispo- Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Legate sition of the matter in this court, and if this v. Legate, 87 Tex, 248, 28 S. W. 281; Ex court on the hearing had determined that the parte Reeves, 100 Tex. 617, 103 S. W. 478. facts did not authorize the rendition of the The Supreme Court is given jurisdiction of judgment, the relator could not be held upon habeas corpus proceedings growing out of a any subsequent process issued thereon. This civil cause. See article 5, 83, of the Constitucourt having determined that the facts dia tion, and Rev. Civ. St. 1911, art. 1529. While authorize the rendition of the judgment, and this court also has jurisdiction to issue a it having been entered in the record, and the writ of habeas corpus, when one is illegally discharge of relator being upon the ground restrained of his liberty (art. 5, § 5, of the that at the time the order of this court was Constitution), we will not exercise it as made there was no judgment entered or pro- against an order made in a civil case, but cess issued authorizing his detention, its pres- will relegate the applicant to the pursuit of ent order discharging him is no impediment his remedy in the courts of civil jurisdiction. to the subsequent enforcement of the judg-Ex parte Alderete, 203 S. W. 763, not yet offment of the district court by proper process. cially reported; Ex parte Mussett, 72 Tex.

The application for writ of habeas corpus Cr. R. 487, 162 S. W. 846. is granted, and the relator is ordered dis

We therefore decline to issue the writ of charged.

habeas corpus and remand the relator to the respondent, John W. Tobin, sheriff of

Bexar county, without in any way prejudic(83 Tex. Cr. R. 375) Ex parte LITTLE. (No. 5032.)

ing relator's privilege of pursuing his remedy (Court of Criminal Appeals of Texas. May 8, by habeas corpus or otherwise in the civil 1918.)

courts having jurisdiction.
HABEAS CORPUS O 44-JURISDICTION-COURT
OF CRIMINAL APPEALS.
While under Const. art. 5, § 5, the Court of

(83 Tex. Cr. R. 366) Criminal Appeals has jurisdiction to issue a

ELLIOTT v. STATE. (No. 5021.) writ of habeas corpus, where a person is illegal- (Court of Criminal Appeals of Texas. May 8, ly restrained, relator, who was adjudged guilty

1918.) of contempt in a controversy over the custody

'

1. CRIMINAL LAW O530 — CONFESSIONS – of a dependent child, under Vernon's Sayles' 1. CRIMINAL LAW Ann. Civ. St. 1914, arts. 2184-2190, a civil

WITNESSES. proceeding, will be relegated to pursuit of his

Confession to which defendant made his remedy in courts of civil jurisdiction, in view mark and which was signed by a competent of Const. art. 5, § 3, and Rev. St. 1911, art. witness is not inadmissible because also signed 1529, giving Supreme Court jurisdiction of by an incompetent witness. habeas corpus proceedings growing out of a civil 2. CRIMINAL LAW 530—CONFESSIONS.

Where the fruits of a crime may alone have case.

been discovered by reason of a confession, the Application by William Little for a writ of confession is admissible whether or not in writhabeas corpus. Denied.

ing or signed.

3. CRIMINAL LAW Omn 465—EVIDENCE-OPINChambers & Watson, of San Antonio, for

ION. appellant. E. B. Hendricks, Asst. Atty. Gen.,

.

Witness, after stating that he found a panel for the State.

of the door broken out or removed, could state that one could reach through the space and re

move the latch so as to open the door. MORROW, J. Relator applied for a writ of habeas corpus, seeking discharge from an

Appeal from District Court, Ellis County ; order of the county judge of Bexar county

F. L. Hawkins, Judge. adjudging him guilty of contempt. The order

Willie Elliott was convicted of burglary, permitting the application to be filed was on and appeals. Affirmed. the theory that the judgment was entered in S. E. Dawson and E. L. Routh, both of a proceeding under the juvenile delinquency Waxahachie, for appellant. E. B. Hendricks, act. Vernon's Texas C. C. P. p. 985, tit. 17. Asst. Atty. Gen., for the State. This act has been construed criminal in its nature. Ex parte McLoud, 200 S. W. 394; Ex DAVIDSON, P. J. Appellant was convictparte Pruitt, 200 S. W. 392; Miller v. State, ed of burglary and allotted two years in the 200 S. W. 389; McLaren v. State, 199 S. W. penitentiary. 811. Since the application has been supple The state's evidence is to the effect that mented by the facts it appears that the pro- the owner of the burglarized house went ceeding grew out of a controversy over the away, and that appellant went into it and custody of a dependent or neglected child. took therefrom a pistol. The state's theory is See Vernon's Civil Statutes, vol. 2, tit. 38, c. 1, that appellant went to the back door, removarts. 2184 to 2190, inclusive.

ed a panel or board so he could and did reProceedings under this statute we regard move the latch, and thus entered the house. as civil in their nature. Instances are numer- There is evidence that the door was in the May

condition indicated. Appellant's statement | Fears' testimony was admissible. There was was that he did go to the house; that the nothing further urged, and that closed the door was partly open; that he might have incident as shown by the judge's qualifica"edged" through it, but did push the door tion to the bill. In any event we are of back far enough to make his entrance; that opinion there is no such error in this as rehe searched for a pistol, which he wanted quires the court to reverse the judgment if to carry with him to the Trinity river bot- there should even be error. tom, and found the pistol and took it away. The judgment will be affirmed. The owner of the house shows there had been other things disturbed in the house; his pants pockets had been turned inside out, and things misplaced generally.

LEWIS V. STATE. (No. 5026.) [1, 2] Appellant made a written confession (Court of Criminal Appeals of Texas. while under arrest, which seems to be in

15, 1918.) conformity with the statute. The introduc- CRIMINAL LAW_Cw1090(8)—APPEAL-RECORD tion of the confession was resisted on the

BILL OF EXCEPTIONS STATEMENT OF

FACTS. ground that it was witnessed by a peace of- In the absence from the record of a stateficer. It shows that the confession was tak-ment of facts or bill of exceptions, sufficiency en by the assistant county attorney, Mr. of the evidence to sustain the verdict cannot

be reviewed. Fears, who signed it as a witness, and that a peace officer did also sign it. The objection Appeal from District Court, Austin Counis based upon the ground that appellant ty; M. C. Jeffrey, Judge. could not write, but made his mark to the Owen Lewis was convicted of assault to confession, and the peace officer was not a murder, and he appeals. Affirmed. competent witness. It is not contended, how

E. B. Hendricks, Asst. Atty. Gen., for the ever, that the assistant county attorney was state. incompetent to sign it as a witness. If the peace officer alone had signed it as a wit- DAVIDSON, P, J. Appellant was convictness, it would have been inadmissible under ed of assault to murder; his punishment being the statute, but, Mr. Fears having signed it assessed at 15 years' confinement in the penialso, we are of opinion that, where a com- tentiary. There is neither a statement of petent witness signs and an incompetent wit- facts in the record nor bill of exceptions. ness signs, the confession is not rendered inad. The only question suggested for revision is missible by reason of the fact an incompetent the want of sufficient evidence to sustain the witness also signed it. Had the deputy sher-verdict of the jury. In the absence of the iff or peace officer alone signed it, the admis- evidence, this question cannot be reviewed. sion of the confession would have been er- The judgment will be affirmed. roneous. It seems also from the confession and the evidence that by reason of this confession the pistol was found. When the con

(83 Tex. Cr. R. 319)

MOORE v. STATE. (No. 5003.) fession was made the officer took the defendant with him to where he said the pistol (Court of Criminal Appeals of Texas. April was, and defendant got the pistol at the

24, 1918. Rehearing Denied May

22, 1918.) point designated. Wherever the fruits of a

1. CRIMINAL LAW Om 369 (5)-EVIDENCE-OTHcrime may alone have been discovered by

ER CRIMES. reason of the confession, the confession

In a prosecution for theft of an automobile, would be admissible whether it was in writ- where defendant's participation in the theft and ing or not, or whether signed or not.

disposition of the car were squarely in issue,

evidence of other auto thefts in which defend[3] There is another bill of exceptions re-ant's accomplice testified defendant participated served to the admission of the testimony of was inadmissible, not serving to connect deMr. Fears, assistant county attorney, to the fendant with the crime, to prove his identity effect that when he went to the house he with it, or his intent, and not constituting any

part of the res gestæ. found a panel of the door broken out, or re- 2. CRIMINAL LAW Om51042-CORROBORATION moved, and that a party could reach through

-ACCOMPLICE IN LARCENY. this space and remove the latch on the in- That defendant, charged with theft of an side so as to open the door. The basis of automobile, was in possession of the recently the objection was that his was an opinion, was proper testimony to corroborate the accom

stolen car in connection with his accomplice, and that he should have stated the facts and plice, who was a state's witness. let the jury reach the conclusion or form 3. LARCENY Ow49—EVIDENCE OF OTHER OFtheir opinion. We do not regard this as a

FENSES-IDENTITY. serious matter, and especially as qualified by other indictments and the verdict of a jury in

In prosecution for larceny of an automobile, the trial judge. If such was the condition another case were not introducible on the quesof the physical facts, we are of opinion Mr. tion of defendant's identity. Fears could so state, and the court in his Appeal from District Court, McLennan qualification informed counsel at the time of County; Richard I. Munroe, Judge. the objection that if such was the case Mr. George Moore was convicted of theft of an

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

automobile, and he appeals. Reversed, and do with the taking or the disposition of the cause remanded.

property. We suppose the fact that he was See, also, 203 S. W. 51.

present at the sale and participated in the J. A. Kibler and Shurtleff & Cummings, fruits of the crime and incidental matters all of Waco, and Chas. L. Black, of Austin, connected with the sale, as shown by Wilson's for appellant. Jno. B. McNamara, Co. Atty., testimony, was to corroborate the accomplice and D. C. Woods, Asst. Co. Atty., both of Tiller. Tiller was not corroborated by any diWaco, and E. B. Hendricks, Asst. Atty. Gen., rect fact as to the taking. He himself placed for the State.

the taking in such manner that no one but he

and appellant were present, but shortly afterDAVIDSON, P. J. Appellant was convicted ward he was with Tiller under the state's of the theft of an automobile from J. P. theory and assisted in the disposition of the

property. In other words, he was in possesGriffis. · The state's case was made by an accom- with Tiller. This was a fact relied upon by

sion of recently stolen property in connection plice named Tiller. His testimony substantially is that he and appellant got the auto in the state to corroborate Tiller, and was propWaco, and after traveling in different parts er testimony, and no objection was urged to of the state finally wound up at El Campo,

its introduction. Appellant's objections were in Wharton county, and sold it to G. W. Wil well taken. They were not introduced for son. The testimony of the accomplice is impeachment purposes. There was testimony

of other indictments, and the verdict of a jupositive as to the theft and the sale, and appellant's presence at the time of the taking ry in another case introduced, and the court and his co-operation and participancy in the signs the bill with the qualification that these sale at El Campo, and the money received were admitted upon the question of identity. from Wilson. Wilson identified the defendant For this purpose they were not introducible. as being at El Campo at the time, and coin- It is useless to discuss this further from

what has been said. ciding and assisting Tiller with the car and

The judgment is reversed, and the cause reits disposition. This, without going into the

manded. details of the case, is the case, in substance, for the state. Appellant denied the transac

PRENDERGAST, J., absent. tion in toto, both as to the taking and the sale so far as he was concerned, and denied his presence at any time or any participancy in

(83 Tex. Cr. R. 324) the entire transaction from beginning to fin- KITCHENS V. STATE. (No. 4977.) ish,

(Court of Criminal Appeals of Texas. May 1, [1-3] The court over various objections per- 1918. Rehearing Denied May 29, 1918.) mitted the introduction of evidence of other 1. CRIMINAL LAW 1098 MATTERS REauto thefts in which Tiller testified that ap- VIEWABLE-RECORD. pellant participated. The objections are bas

Statement of facts wholly in question and ed upon the theory that independent and ex- answer form will be stricken on appeal.

2. CRIMINAL LAW 1097(4)-MATTERS REtraneous matters and offenses are not admis

VIEWABLE-RECORD. sible unless they in some way are necessary Bills to the admission of testimony cannot to show appellant's guilt or connect him with be considered in the absence of a statement of this transaction. This is a sound proposition. facts. Many cases can be found collated in Mr. Appeal from District

District Court, Angelina Branch's Ann. P. C. pp. 98 and 99. Appellant County; L. D. Guinn, Judge. collates in a very able brief a lot of these cas- Horace Kitchens was convicted of robbery,

There seems to be no just theory upon and he appeals. Affirmed. which these extraneous matters were admis- S. H. Townsend, of Lufkin, for appellant. sible in this case. They in no way serve to E. B. Hendricks, Asst. Atty. Gen., for the connect defendant with this transaction, or State. prove his identity with this transaction, or his intent in taking this car, nor did they PRENDERGAST, J. Appellant was conconstitute any part of the res gestæ. They victed of robbery and assessed the lowest were independent offenses committed at dif- punishment. ferent times and under different circumstanc- [1] The statement of facts is wholly in es. It was a square-put issue under the facts question and answer form. The state has of appellant's participancy in the theft and made a motion to strike it out and not conthe disposition of the property. There was sider it. Under the statutes and the many no issue, if he did so, of his identity, or his and uniform decisions of this court the intent, because if he did he was guilty, and state's motion must be granted.

A great the other cases have no connection with this number of cases down to the present time case, and, not serving any purpose to connect could be cited, but we deem it unnecessary. him with it or show his intent, were in- We here cite some of them: Hargrave v. admissible. He accepted the issue, and met State, 53 Tex. Cr. R. 147, 109 S. W. 163; it by positive evidence that he had nothing to Essary v. State, 53 Tex. Cr. R. 596, 111 S.

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