Ex parte Ezell

• Decision Date: 01 January 1874
• Citation: 40 Tex. 451
• Parties: EX PARTE D. M. EZELL AND JOHN IVEY.
• Court: Texas Supreme Court

40 Tex. 451

EX PARTE D. M. EZELL AND JOHN IVEY.

Supreme Court of Texas.

1874.

1. The 9th section of the bill of rights secures the right of bail only to those prisoners who have not been tried and convicted in the district court.

2. When the application for the writ of habeas corpus shows that the applicant is restrained of his liberty by a sheriff acting under a commitment issued by the district court after trial and judgment of conviction for a felony, the writ will not be awarded.

D. M. Ezell and John Ivey were, at the February term, 1874, of the Travis district court, tried and found guilty of a felony, and their punishment assessed at imprisonment in the penitentiary. Final judgment of conviction was rendered against them, and they were committed to jail. Their application for bail, made after conviction, being refused by the district judge, they applied to this court for a writ of habeas corpus, and in their application set forth the above facts.

D. E. Thomas, for relators. This application is made in the face of the statute which provides, that “when the defendant appeals in any case of felony, he shall be committed to jail until the decision of the supreme court can be made.” See Pas. Dig. art. 3185.

This statute, we insist, is in direct conflict with that provision of the constitution of the state which provides that “All prisoners shall be bailable on sufficient sureties, unless for capital offenses when the proof is evident.” Const. art. 1, sec. 9.

To determine this question it would be well to inquire, what was the object of the above provision of the constitution? Was it to enlarge or abridge the rights of a prisoner, as known and recognized by the provisions of the common law? It was certainly to enlarge his right to bail, and not to abridge that right.

The right and power of the court of king's bench in England to grant bail after conviction cannot be denied. It is a matter resting in the sound discretion of the court. Bishop, Cr. Proc. vol. 1, secs. 698, 699; Bac. Abr. vol. 1, 483, 493; 2 Hawk. P. C. 170; 3 East, 163; 5 Tenn. 169; 1 Chit. Cr. Law, 2 ed. 98, 99.

The constitution of Mississippi provides that “All prisoners before conviction are bailable by sufficient securities, except for capital offenses where the proof is evident or presumption great;” yet they hold in that state that the circuit courts possess and may exercise the power of bailing after conviction in cases not capital whenever a sound discretion will warrant it. Ex parte Dyson, 25 Miss. 358;6 How. (Miss.) 399; Davis v. The State, and authorities cited in the above cases; see also Corbit v. The State, 24 Ga. 391;People v. Johnson, 2 Barb. 450; Tennessee Code, Constitution and Laws, 3 Caldwell, 96.

Wherever bail was a matter of discretion with the court at common law, it becomes a matter of right under our constitution, and the legislature has no power to deprive a prisoner of that right.

If the petitioners are not convicts they are prisoners, and certainly come within the purview of the constitution. They are not convicts as defined by our statute.

“An accused person is termed a convict after final condemnation by the highest court of resort which by law has jurisdiction of his case, and to which he may have thought proper to appeal.” Pas. Dig. art. 1628.

From the above definition as given by our law, the petitioners are not convicts. They have not been finally condemned by the court of last resort in which their cause is now pending. But prisoners in contemplation of law, and therefore entitled to bail. 3 La. An. page 10, point expressly decided.

No sentence has or can be pronounced. But sentence is stayed by operation of law to await final adjudication in the supreme court.

The constitutionality of the above law has never been decided by the supreme court of this state.

The case of Brill v. The State, 13 Tex. 79, is no authority against the position we assume; the constitutionality of the law was not raised in that case.

We regard the question presented a serious one, involving the liberty of the citizen; we therefore ask the serious and deliberate consideration of the court to all the authorities upon the point before bail is denied to the petitioners in this cause.

Terrell & Walker, also for relators.

Geo. Clark, Attorney General, for the state.

ROBERTS, CHIEF JUSTICE.

The code of criminal procedure provides, that “when the defendant appeals in any case of felony, he shall be committed to jail until the decision of the supreme court can be made.”

The applicants having been convicted of a felony in the district court and taken an appeal to this court, contend that they are entitled to bail in contravention to the law, because it is in conflict with that part of our bill of rights in the constitution which says that “all prisoners shall be bailable upon sufficient sureties unless for capital offenses when the proof is evident; but this provision shall not be so construed as to prohibit bail after indictment found, upon an examination of the evidence by a judge of the supreme or district court, upon the return of the writ of habeas corpus, returnable in the county where the offense is committed.”

After a full consideration of the subject, we are not prepared to say that the legislature has not the power to pass such a law. Although the terms “all prisoners” are used, it is evident that it was not meant to require all prisoners under all circumstances to be bailed, but must refer to a class of prisoners, each and all of whom shall be bailed except as therein provided. There are several considerations leading pertinently to the conclusion that prisoners before trial and conviction in the district court were those alone who were designed to be secured this absolute constitutional right of bail.

The district court is the tribunal provided by the constitution for the trial and conviction of persons charged with offenses amounting to felonies. The same instrument secures them the right of appeal from the judgment of conviction to the supreme court. That appeal, however, does not bring the party before this court for a trial de novo; it merely suspends the judgment of the court below until this court can revise and pass judgment upon the correctness of the proceedings of the district court in the trial of the cause.

This appeal for revision is a discretionary privilege, of which the party convicted can avail himself or not, as he pleases.

The constitution secures to him this privilege, but does not prescribe the mode or manner of obtaining it. By a necessary implication, the duty is cast upon the legislature of making such regulations in securing this appellate revision of his conviction as will reasonably attain the object for his benefit, and at the same time secure a reasonable certainty of his punishment, in the event his conviction shall be pronounced by the appellate court, upon revision thereof, to have been correct. These regulations properly embrace not only the various steps to be taken in presenting the subject matter of revision to this court, but also the security of his person to abide the decision.

The legislature, therefore, is under an obligation to the party and to the public, in the discharge of which the rights of both must be practically subserved. If the party should be bailed after conviction, punishment in the penitentiary would simply have its price, regulated generally by the amount of the recognizance, where one could be given at all. And if the amount should be increased so as to secure the appearance, it would most likely either prevent the giving of the bail, or would infringe upon another constitutional right which is covered by the expression that “excessive bail shall not be required.”

It is not clear, then, that this is not a necessary and proper regulation in securing this right of appeal to a party convicted of a felony.

Another consideration arises out of the time and circumstances under which this law was enacted, and the long continued tacit recognition of its propriety in forming constitutions during its existence and enforcement.

It was adopted as a part of our codes, in adapting our criminal laws to the penitentiary system. The constitution of 1845, then in force, contained this same clause in the bill of rights in reference to the right of bail, and it provided also for the right of appeal in criminal cases, “with such exceptions and under such regulations as the legislature shall make.”

These two provisions construed together made it reasonably certain that ...