Bennett v. State
| Decision Date | 01 January 1864 |
| Citation | 27 Tex. 701 |
| Parties | W. H. BENNETT v. THE STATE. |
| Court | Texas Supreme Court |
The grand jury failed to present any indictments or informations because there was no district attorney present to prepare them, the district attorney not being in attendance, and several members of the bar having declined to accept the appointment of district attorney pro tempore, on the ground that they had been retained for the defense by parties who had been either indicted or expected to be indicted. On the third day of the term the grand jury were discharged; thereupon a party, who had been committed to the custody of the sheriff upon the charge of murder, moved the court to be discharged, which was refused. Held, that the court erred in refusing to discharge the accused from the custody of the sheriff after the grand jury had been discharged without finding any indictment or information against him.
Where a party is accused of a criminal offense, and is committed to custody or held to bail by an examining court for the purpose of proceeding further against him in another tribunal, he is considered as a defendant against whom there is a prosecution. If that prosecution is discharged in due course of law, he is entitled to his liberty and to all the privileges of a citizen against whom there is no accusation.
If he be not indicted, or if an information be not presented against him by the grand jury at the next term of the district court after the commitment, he is entitled, by the terms of article 537 of the Code of Criminal Procedure, to have the prosecution against him dismissed; that is to say, to have an order made by the district court discharging him from custody; but the failure to hold a regular term of the district court after such commitment would not entitle him to such an order.
The district court has undoubtedly the power to require any member of the bar present to prepare such bills of indictment as the grand jury may desire to present, and to impose adequate punishment for a refusal to do it, without good cause shown. The court would not require an attorney to prepare a bill of indictment against a person who had already retained him for defense.
APPEAL from Smith. Tried below before the Hon. W. M. Taylor.
The facts appear in the opinion of the court.
Donley & Anderson, for appellant.
Attorney General, for appellee.
The record in this case discloses that, at the January term, A. D. 1864, of the district court for Smith county, the district attorney was not in attendance upon the court; that the presiding judge of the court “tendered the appointment” of district attorney pro tempore to four members of the bar in attendance upon the court, “who severally declined to receive said appointment” because they were retained for the defense of parties who were indicted in the court and against whom it was expected that bills of indictment would be preferred; that on the third day of the term, the grand jury came into court and asked to be discharged, there being no one present with said grand jury acting as attorney for the state--the said jury not having returned into court any information or bills of indictment, and saying that they could not present any bill of indictment, not having a district attorney; that on the said third day of the term the grand jury were, at their request, discharged. The record further discloses that,...
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