Ex Parte Degener
Decision Date | 19 December 1891 |
Citation | 17 S.W. 1111 |
Parties | <I>Ex parte</I> DEGENER <I>et al.</I> |
Court | Texas Court of Appeals |
C. Upson, Denman & Franklin and Simpson & James, for relators. Richard H. Harrison, Asst. Atty. Gen., Wm. Aubrey, and B. J. De Witt, for sheriff.
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; 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: 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: Thomp. Trials, §§ 141, 142. Upon this subject another author remarks, in keeping with the above: ...
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Ex Parte Martinez
...of the person, or has rendered a judgment on the facts which ought not to have been rendered under such state of facts. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111; Goodfellow v. State, 53 Tex. Cr. R. 473, 110 S. W. 755; Ex parte Garza, 50 Tex. Cr. R. 108, 95 S. W. 1059; Ogle v. State......
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Laird v. State
...turn to another line of authorities which ought to be deemed now as fully settling the question adversely to the state. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111, where a great number of cases are collated, the opinion having been written by Presiding Judge White. Ex parte Taylor, 3......
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Robertson v. State
... ... the contempt arises and of a criminal nature. 7 Words and ... Phrases, p. 6588; 13 C.J. p. 7 ... In Ex ... parte Hardy, 68 Ala. 315, the Supreme Court of this state ... "It is often said that contempts of court are in the ... nature of a 'special criminal ... prisoner held under such judgment may be released on habeas ... corpus.' Ex parte Degener, 30 Texas App. 576, 7 S.W ... 1111; Ex parte Taylor, 34 Tex.Cr.R. 591, 31 S.W. 641; Ex ... parte Tinsley, 37 Tex.Cr.R. 517, 66 Am.St.Rep. 818, 40 ... ...
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Ex parte Renier
...direct return of the writ to certain counties or courts, are akin to laws fixing venue.3 Although the early case of Ex parte Degener, 30 Tex.App. 566, 17 S.W. 1111 (1891) is occasionally cited for this proposition, its modern formulation seems to derive from State ex rel. Wilson v. Briggs, ......