Ex Parte Foster

• Decision Date: 28 January 1903
• Citation: 71 S.W. 593
• Parties: Ex parte FOSTER.
• Court: Texas Court of Criminal Appeals

Page 593

71 S.W. 593

Ex parte FOSTER.

Court of Criminal Appeals of Texas.

January 28, 1903.

Habeas corpus by Marcellus F. Foster to obtain his release from a commitment for contempt. Granted.

N. G. Kittrell and W. W. Walling, for relator. Robt. A. John, Asst. Atty. Gen., for respondent.

HENDERSON, J.

This is an original proceeding on habeas corpus to enlarge the relator from a commitment of the district judge of the criminal district court of Harris county on an alleged contempt, for publishing the evidence in the trial in said court of D. F. Williams et al., charged with murder, in the Chronicle, a daily newspaper published in the city of Houston.

The state, by her assistant attorney general, has filed a motion to dismiss this case on the ground that the relator, when he sued out the writ of habeas corpus, and thereafter since that time, was not in the legal custody or restraint of the sheriff of Harris county; and evidence has been adduced before us upon that issue. The testimony, in effect, shows that relator was allowed by the sheriff the liberty of the city of Houston; and on one occasion, it seems, he left said city for a short time without leave of the sheriff, but returned to the city. The relator testified that he was told by the sheriff to consider himself under arrest, and that his movements must be under the control of said sheriff; that the sheriff was aware of his purpose to sue out the writ of habeas corpus, and exercised toward him liberality, in enabling him to sue out the writ without confining him actually in jail; that the understanding was that he was in the custody of the sheriff, and, unless he should be released by the writ of habeas corpus, he was amenable to that custody, and would have to pay the fine. As we understand the testimony, this comes clearly within the rule laid down in Ex parte Snodgrass, 65 S. W. 1061, 3 Tex. Ct. Rep. 588. A majority of the court in that case, after quoting certain articles of our Code, used this language: "We deem it unnecessary to enter into a long discussion on these authorities, but suffice it to say that any character or kind of restraint that precludes an absolute and perfect freedom of action on the part of the relator authorizes such relator to make application to this court for release from said restraint." The motion of the state is accordingly overruled, and we hold that relator was entitled to the writ.

Relator has shown that no order of record was made in said case of state of Texas against Williams et al., prohibiting the publication of the evidence in said case, but that the judge merely, in open court, notified and ordered relator that the court would hold him in contempt of the court if said newspaper, of which he was the publisher, should publish said testimony in said case before a verdict was had. It was further shown that no affidavit was made by any one charging relator with a violation of said verbal order; but on information, and of the court's own motion, he entered a judgment nisi against relator as for contempt, assessing his punishment at a fine of $100 and three days' imprisonment in the county jail. Notice was then issued, requiring him to come before said court and show why said judgment should not be made final. It is urged by relator that this procedure was irregular and void; that, in the first place, conceding the court had jurisdiction, an order should have been made and entered of record prohibiting the publication of said evidence; that, if same was violated by the relator, then an affidavit should have been made (the contempt being a constructive one against him), and an attachment issued, requiring him to show why he should not be adjudged guilty of contempt for a violation of said order; and that it was not competent for the court, of its own motion, and without affidavit, to have in the first instance adjudged him guilty of contempt, and then attached him, to show cause why the said judgment should not be made final; and that such procedure on the part of the court was illegal and void. We are inclined to agree with this contention. 4 Enc. Pl. & Prac. p. 776, and authorities there cited.

However, a more important question is raised, and we do not see fit to rest this decision upon the illegality of the procedure which was adopted. Relator insists (and in this he is borne out by the record) that in the publication which occurred in the Houston Chronicle, of which he was the editor and publisher, there was nothing of a character reflecting on the judge or the court, but he merely published a true statement of the testimony adduced from the witnesses in the case; and he says he was authorized to do this, notwithstanding the order of the judge, because the testimony was given in the course of a public trial in a court of justice, and the constitution guaranties a public trial, and also guaranties the freedom of the press. We have given this subject that careful examination commensurate with its importance, mindful that, on the one hand, the dignity and authority of the courts must be maintained, while, on the other, free speech, a free press, and the liberty of the citizen must be preserved. Both are equally valuable rights. If the court is shorn of its power to punish for contempts in all proper cases, it cannot preserve its authority, so that, without any constitutional or statutory guaranty, this power is inherent in the court. But the constitution itself, in our bill of rights, guaranties free speech and the liberty of the press. Of course, it was never intended, under the guise of these constitutional guaranties, that the power of ...