Ex Parte Garner

• Decision Date: 20 December 1922
• Docket Number: (No. 7503.)
• Citation: 246 S.W. 371
• Parties: Ex parte GARNER.
• Court: Texas Court of Criminal Appeals

246 S.W. 371

Ex parte GARNER.

(No. 7503.)

Court of Criminal Appeals of Texas.

December 20, 1922.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Application by Sie Garner for a writ of habeas corpus to be released from restraint. From a denial of the writ, relator appeals. Reversed and remanded.

Oliver W. Johnson, of San Antonio, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The relator sought in the district court to be released by way of writ of habeas corpus from restraint under a commitment issued by a justice of the peace in these words:

"You are hereby commanded, that you take in custody and commit to the jail of your county, Sie Garner, charged with making threats, on which charge he has this day by me been committed, and him safely keep unless he gives good and sufficient peace bond in the sum of two hundred ($200.00) dollars."

The statutory authority of magistrates upon the subject of requiring security to keep the peace is found in title 3, Code of Crim. Proc. Article 120 of that Code declares that one who threatens to take the life of another may be brought before a magistrate, and may be compelled to give security to keep the peace or committed into custody in default thereof. Article 124 provides that upon the filing of the affidavit charging the threat, a warrant may be issued bringing the accused before the magistrate. In article 125 the following language is found:

"When the person accused has been brought before the magistrate, he shall hear proof as to the accusation, and, if he be satisfied that there is just reason to apprehend that the offense was intended to be committed, or that the threat was seriously made, he shall make an order that the accused enter into bond in such sum as he may in his discretion require, conditioned that he will not commit such offense, and that he will keep the peace toward the person threatened or about to be injured, and toward all others for one year from the date of such bond."

Article 132 of the Code declares that —

"If the magistrate be of opinion from the evidence that there is no good reason to apprehend that the offense was intended or will be committed, or that no serious threat was made by the defendant, he shall discharge the person so accused."

The relator insists that his demand for a jury having been denied, his detention offends against the constitutional provision requiring that the right of trial by jury "shall remain inviolate." Article 1, § 15. It is clear that in enacting the statute, article 125, supra, the Legislature intended to confer upon the magistrate the power to make the decision. The language of the statute will bear no other interpretation. Relator contends, however, that the statute is void because it denies him the right of trial by jury. Attention has been directed to only one case in this state upon the subject, namely, Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S. W. 1131. In that case, while definite opinion upon the subject is reserved, the intimation is given that the statute is valid. Bond is not required as punishment for the offense, but is intended to prevent the commission of a crime. Proceedings of this character are generally regarded in the nature of criminal proceedings. Corpus Juris, vol. 9, p. 393, § 21, notes 17, 18. In some states they are held to be criminal. See Cyc. of Pleading and Practice, vol. 3, p. 680; Davis v. State, 138 Ind. 13, 37 N. E. 397; State v. Oates, 88 N. C. 668; Ford v. State, 96 Miss. 85, 50 South. 497; Arnold v. State, 92 Ind. 187. In South Carolina, there is a provision in the state Constitution expressly conferring upon the magistrate the power to bind one over to keep the peace, and the statute in accord therewith is held valid. State v. Garlington, 56 S. C. 413, 34 S. E. 689. Inasmuch as the right of trial by...