Ex Parte Reynolds

• Decision Date: 12 February 1896
• Citation: 34 S.W. 120
• Parties: Ex parte REYNOLDS.
• Court: Texas Court of Criminal Appeals

34 S.W. 120

Ex parte REYNOLDS.

Court of Criminal Appeals of Texas.

February 12, 1896.

Original application by Larkin Reynolds for a writ of habeas corpus. Writ granted, and applicant discharged.

Makemson & Fisher, for applicant. Mann Trice, for the State.

DAVIDSON, J.

This is an original application for writ of habeas corpus, now before this court for trial. The applicant sued out a writ of habeas corpus before us, alleging that he was illegally restrained of his liberty, because, he says, the indictment under which he was convicted and sentenced to the penitentiary was found by a body composed of 14 persons. We have examined the evidence in the case, all being of record, and find that it is true, as alleged, that the indictment on which the applicant was tried, convicted, and sentenced to the penitentiary was returned into court by a body composed of 14 men. The only question for our decision is, can the applicant obtain relief from imprisonment under the above state of case by a writ of habeas corpus. Section 10 of the bill of rights provides, as a part thereof, that "no person shall be held to answer for a criminal offense, unless on indictment by a grand jury, except in cases where the punishment is by fine," etc. Section 13, art. 5 of the constitution provides that "grand and petit juries, in the district courts, shall be composed of twelve men." This court has held, and we see no reason for changing our opinion, that a body composed of more than 12 men is not a grand jury. See Lott v. State, 18 Tex. App. 627; McNeese v. State, 19 Tex. App. 48; Smith v. State, Id. 95; Ex parte Swain, Id. 323; Rainey v. State, Id. 479; Wells v. State, 21 Tex. App. 594, 2 S. W. 806; Harrell v. State, 22 Tex. App. 692, 3 S. W. 479. The district court, in felony cases, does not obtain jurisdiction of the offense, unless by indictment. There must first be the act of a grand jury before the court's jurisdiction can attach in such cases. A prosecution for a felony, without indictment by a grand jury, is not due process of law, in this state. There can be no indictment unless there was a grand jury. The verdict and judgment, without an indictment, in a felony case, are absolute nullities, and cannot be the basis or warrant for any commitment. Let us suppose that the applicant had been tried upon an information,—could it be contended that the jurisdiction of the court attaches to that case? We think not. Let it be supposed that there was neither information nor...