Ex Parte Kearby

• Decision Date: 05 March 1896
• Citation: 34 S.W. 635
• Parties: Ex parte KEARBY et al.
• Court: Texas Court of Criminal Appeals

34 S.W. 635

Ex parte KEARBY et al.

Court of Criminal Appeals of Texas.

March 5, 1896.

Original application by J. C. Kearby and W. E. Hawkins for a writ of habeas corpus, for the purpose of obtaining their discharge from imprisonment for contempt under an order of the criminal district court.The writ was granted, and the attorney general moves to dismiss the writ and remand the applicants.Motion overruled.

S. H. Russell, J. C. Muse, and S. B. Hawkins, for relators.Mann Trice, for the State.

HENDERSON, J.

Applicants in this case applied for writs of habeas corpus, and one of the judges of this court granted the same, making the writs returnable before the full court, which is now in session at this place.The applicants allege that the matter about which the judge of the criminal district court assumed to imprison them for contempt occurred during the trial of a cause in said district court.It is averred in the application that the parties did no unlawful act in said court, and were guilty of no contempt in said court in any respect whatsoever, and that the said district judge, unlawfully and without cause therefor, remanded them to jail, until they should purge themselves of said contempt before said court and jury; that no order of the court was entered, and no writ of commitment issued from said court.Applicants claim that the order of imprisonment is for an indefinite time, and is therefore void; and that it is also void, because no judgment of the court was entered against them, and no writ of commitment was issued as against them.The applicant Hawkins further shows that he made an effort to purge himself of contempt of said court by either a written or verbal explanation or apology, which was refused by the judge.

The attorney general moved to dismiss the writ and remand the relators to jail, because this court has no jurisdiction to inquire into the matter of their detention.This question involves the power of this court to inquire, by an original proceeding, into the legality of a detention by a court of subordinate jurisdiction for an alleged contempt.It is admitted that this presents a question of some delicacy, for in the power of courts to preserve order and decorum in their presence is involved, to a great extent, the authority and dignity of the court itself; and therefore any court that should undertake to interfere with such jurisdiction ought to act with due care and caution to ascertain whether or not it has jurisdiction to entertain the writ.Although this is not a new question in this state (seeEx parte Degener, 30 Tex. App. 566, 17 S. W. 1111), yet we have undertaken to carefully investigate our right to interfere in the present instance.Article 155, Code Cr. Proc., provides "that the court of appeals, or either of the judges thereof, the district courts or any of the judges thereof; the county court or any of the judges thereof, have power to issue the writ of habeas corpus, and it is their duty upon proper application to grant the writ, under the rules herein prescribed."Article 154 says: "That every provision relating to the writ of habeas corpus shall be most favorably construed, in order to give effect to the remedy and protect the rights of the person seeking the relief under it."Article 173 reads as follows: "The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law."Article 165 also provides: "The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition itself, or some document annexed to it, that ...