Ex Parte Love

• Decision Date: 14 March 1906
• Citation: 93 S.W. 551
• Court: Texas Court of Criminal Appeals
• Parties: Ex parte LOVE.

93 S.W. 551

Ex parte LOVE.

Court of Criminal Appeals of Texas.

March 14, 1906.

Habeas corpus proceedings by Jim Love to obtain his release from custody under a conviction in a criminal case. Applicant remanded to custody.

Weeks & Ewing, for appellant. W. H. Shook, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

On May 22, 1905, the grand jury was duly organized in the district court of Cherokee county at a regular term, with the constitutional number of 12. On May 27th an order was entered on the minutes allowing that body to take a recess for some days, in fact, until the 19th of June. This was properly done. On June 19th the grand jury reassembled with only eight of the original number present; the others being detained on account of the swollen condition of the streams, and one of said grand jurors (W. W. Hatchett) was sick. Hatchett not appearing by noon, the district judge had the sheriff to summon two talesmen. They were brought in and one of them (Bagley) was sworn as a member of the grand jury. The court stated that at the time Hatchett was excused. The excusing of Hatchett and impaneling of Bagley was not entered upon the minutes of the court. After Bagley was charged, and the grand jury retired, Burton, a legal member of the grand jury as originally constituted, made his appearance, whereupon the district judge sent for the grand jury, discharged Bagley, and told them to retire for their deliberations. The order discharging Bagley was not entered on the minutes. Bagley was only with the grand jury from three to five minutes, not exceeding five minutes. No witness appeared before the grand jury about any matter while Bagley was in the grand jury room, nor between the time he was charged as a member of that body and the time of his discharge. No case was considered or discussed, and no action taken by vote, or otherwise. Applicant's case, nor any other case was before the grand jury during that time. After Bagley's discharge, while nine or more of the members of the original grand jury were present, Bagley not being present, the grand jury investigated applicant's case, and presented against him a bill of indictment. Bagley had nothing to do with the consideration of applicant's case before that body. Applicant was convicted in the county court on the indictment thus returned, which was otherwise sufficient, charging him with violating the local option law. From this conviction an appeal was prosecuted to this court, at the recent Tyler term (90 S. W. 169) and the appeal dismissed. He was then arrested, and was in custody when he filed his application in this court for the writ of habeas corpus, which forms the basis of this discussion. This is the agreed statement of facts.

Applicant insists that by the impaneling of the juror Bagley, the grand jury thus constituted, consisted of 13 members; and therefore their action in returning the bill of indictment against him was void. The respondent's proposition is that the district judge did not have authority to make Bagley a member of the grand jury under the facts stated. It will be noted that the grand jury was not discharged and reassembled as the district judges are empowered to do, but only a recess was taken by that body. The question then is, whether or not the action of the district judge in placing Bagley upon the jury was authorized, and therefore he became a member of that body. It will hardly be questioned that the grand jury has a right to take a recess under the terms of the statute for the time prescribed by...