Ex Parte Degener

• Decision Date: 19 December 1891
• Parties: <I>Ex parte</I> DEGENER <I>et al.</I>
• Court: Texas Court of Appeals

17 S.W. 1111

Ex parte DEGENER et al.

Court of Appeals of Texas.

December 19, 1891.

Application for writ of habeas corpus. Granted.

C. Upson, Denman & Franklin and Simpson & James, for relators. Richard H. Harrison, Asst. Atty. Gen., Wm. Aubrey, and B. J. De Witt, for sheriff.

WHITE, P. J.

This is an original application to this court for a writ of habeas corpus by 12 parties lately composing the grand jury of the thirty-seventh judicial district court of Bexar county, applicants alleging that they are illegally restrained of their liberty by the sheriff of Bexar county under certain writs, warrants, and process issued by the district court of the forty-fifth judicial district of Bexar county upon a judgment for contempt, which writs and judgment they claim are absolutely void; and they pray this court to discharge them from the illegal restraint and custody that has thus been inflicted upon them. In pursuance of this application, and after an inspection of the petition and exhibits thereto attached, this court, at a former day of this term, granted the writ as prayed for, and the case has been submitted for determination upon an agreed statement of facts prepared by and between counsel for applicants and the assistant attorney general. In brief, the gravamen of the supposed contempt consists in the issuance of a writ of attachment for witnesses by the grand jury of the thirty-seventh judicial district court of Bexar county, which writ of attachment contained the names of several witnesses, and among them, that of the Honorable W. W. KING, judge of the forty-fifth judicial district, who was also holding his court in Bexar county at the time of issuing the said writ; and that said attachment was served upon him by the bailiff of said grand jury while he was upon the bench presiding over his court, and engaged in the trial of a cause pending in his court. As to the manner of the service of said writ of attachment the affidavit of the bailiff of the grand jury states, in substance, that the attachment was issued on the 14th of November, and handed to him by the foreman of the grand jury; that the grand jury adjourned before any of the witnesses were summoned on that day; that affiant kept the writ of attachment until about the hour of 11 A. M. on November 16 or 17, 1891; that affiant served the same upon the Honorable W. W. KING; "that affiant entered the courtroom, and found an attorney addressing the court, and waited until the attorney had ceased to address the court and had taken his seat, whereupon affiant in a respectful manner, and without any thought of committing a contempt, quietly went to the side entrance of the bench, and handed the summons to Judge KING, stating at the same time and in a respectful tone and manner that `any time would do for his appearance by two o'clock that afternoon;' that Judge KING asked him who was the foreman of the grand jury; that affiant answered, `Mr. Degener;' that Judge KING then said, `Tell Mr. Degener that I wish to see him, and I will have him put in jail for contempt of court;' whereupon affiant retired in a respectful manner, and carried Judge KING'S message to Mr. Degener. Affiant further says that neither the foreman of the grand jury nor any member caused him to serve said summons on Judge KING while he was on the bench, nor did any of them intimate to him that he should approach Judge KING while he was on the bench." It is further shown by the record that Judge KING, in obedience to the writ of attachment thus served upon him, did voluntarily appear before the grand jury on the 17th of November, two days after the issuance of the attachment, to testify to matters pending before that body. The above and foregoing are, in brief, the essential facts as same are presented to us in the agreed statement before us.

Our statute provides that "the foreman of the grand jury may issue a summons or attachment for any person in the county where they are sitting, which summons or attachment may require the witness to appear before them at a time fixed or forthwith, without stating the matter with respect to which the witness will be called to testify." Code Crim. Proc. art. 401. Notwithstanding this provision of the statute, it is insisted by the attorneys for respondent that an attachment nevertheless could not legally be issued by the grand jury until after the witness had been first subpœnaed and failed to appear and testify as provided in articles 487, 488, Code Crim. Proc. In the view we take of the case, we deem it unnecessary to discuss or determine this point. The record is silent as to whether a prior subpœna had been issued, but, conceding that the action of the grand jury in issuing the attachment where there had been no disobedience of a prior subpœna was unauthorized, still we do not think, in the light of the record, that such unauthorized action could and would constitute per se a contempt of the judge of the forty-fifth judicial district; nor do we understand that the latter claimed at the time that the supposed contempt consisted in or was occasioned by the unauthorized issuance of the writ, but, on the contrary, that the contempt was predicated by him mainly upon fact of the time, place, mode, and manner of its service. It is clear from their answer that the grand jury thought that they had the right to issue the attachment, whether that right existed in law at the time of its issuance or not. They cite the law upon which they based their authority, and, if they were mistaken in their construction of the law, that mistake of judgment as to what the proper construction was cannot and should not be imputed to them as a crime. We know of no statute or rule of law which exempts a district judge from liability to be legally summoned or attached as a witness before a grand jury. Certainly no such exemption is provided in the article above quoted. There can be no question, however, but that the arrest of a district judge by virtue of a writ of attachment while he is upon the district bench presiding over his court, whereby, if such be the result, the proceedings of his court are interfered with, obstructed, or stopped would be a most gross, unwarranted, and illegal exercise of the powers conferred upon the grand jury or any other tribunal authorized to issue process for witnesses. It would be a gross contempt of the authority and dignity of the judge, as well as the court over which he presides, and one which he would have the power summarily to resent and punish as a contempt. Independent of the inherent right which courts have to protect and maintain their dignity and authority, our statute expressly confers upon them the power to punish for contempts. Rev. St. art. 1120; Jordan v. State, 14 Tex. 441.

Mr. Thompson, in his work on Trials, says: "It is necessary to the due exercise of the functions of a judicial court that the judge should possess the power to preserve order while conducting judicial proceedings, to enforce obedience to the lawful orders and process of the court, and consequently to punish disobedience of the same. It is therefore a general principle of common law, subject to statutory limitations, in this country, that every superior court of record has the inherent power to punish contempts committed in its presence and against its authority; that every such court is the exclusive judge of such contempts. The result of this doctrine is that superior courts of record are not bound to certify upon their record the facts of which a contempt consists, but that every other court or judge, where the validity of a commitment for contempt by such a court is drawn in question, is bound to presume that the facts were sufficient to warrant it." This rule of common law has been adopted in many instances in this country cited by the learned author in connection with his text. Another rule announced by the same learned author is: "An order committing a person for such contempt is in the nature of a judgment. The person so committed is committed in execution, and, if the court have jurisdiction so to commit him, and if the contempt is plainly charged in the warrant of commitment, he will no more be relieved on a habeas corpus than he would be if he were committed in execution of a judgment founded upon a verdict in an ordinary criminal prosecution. It will appear from the general current of the decisions which declare this rule that the inquiry upon habeas corpus is ordinarily limited to the question whether the court which made the order of commitment had jurisdiction in the premises. If jurisdiction appear, the rule expressed above, that every superior court of record and every legislative body of a sovereign state is the exclusive judge of the contempts committed in its presence or against its process or authority, forbids all interference on the part of other tribunals, by means of the writ of habeas corpus or otherwise, except in plain cases of excess of jurisdiction. The question concerns the power of one court to judge of the jurisdiction of another court. This power will be freely exercised where the court which issued the habeas corpus is a court having appellate or superintending jurisdiction over the court which made the commitment; and this consideration will explain the fact that many such courts, while professing to limit their inquiry to the jurisdiction of the inferior court, push such inquiry much further than one court would go in inquiring concerning the jurisdiction of a co-ordinate court." Thomp. Trials, §§ 141, 142. Upon this subject another author remarks, in keeping with the above: "The writ of habeas corpus is a collateral remedy; and under the well-established rule that a judgment of a court of competent jurisdiction upon a matter wherein that jurisdiction cannot be collaterally impeached, it results that, no question of jurisdiction being raised or involved, a conviction or commitment for contempt cannot be reviewed by...