Ex Parte Spanell

• Decision Date: 14 May 1919
• Docket Number: (No. 5397.)
• Citation: 212 S.W. 172
• Parties: Ex parte SPANELL.
• Court: Texas Court of Criminal Appeals

212 S.W. 172

Ex parte SPANELL.

(No. 5397.)

Court of Criminal Appeals of Texas.

May 14, 1919.

Original application by H. J. Spanell for writ of habeas corpus to obtain his discharge from the custody of the sheriff, by whom he was held under a capias issued in a case wherein relator was charged with murder. Writ dismissed, and relator remanded.

See, also, 203 S. W. 357.

Anderson & Upton, of San Angelo, L. A. Dale, of El Paso, Williams & Williams, of Waco, and Critz & Woodward, of Coleman, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case relator, Harry J. Spanell, in an original application for habeas corpus, seeks to be discharged from the custody of the sheriff of Coleman county, Tex., by whom he is held under a capias issued in a case pending in the district court of said county wherein relator is charged with the murder of M. C. Butler. The ground for the relief sought is that relator has heretofore been placed in jeopardy and acquitted of the murder of Crystal Spanell, it being alleged in the application that the act, volition, and transaction for which he has so been in jeopardy and acquitted was one and the same as that now charged against him, and that the evidence in support of said charge was, and will be, the same as that upon which he was formerly tried, and that, unless he be discharged under this writ, he will again be placed on trial and in jeopardy, in violation of his legal and constitutional rights.

It is objected by the state in limine that a writ of habeas corpus will not lie in such case, and that any action in the premises on our part would be a trespass upon the jurisdiction of a court of existing and competent jurisdiction, to wit, the district court of Coleman county. This question is by no means a new one, either in this or the other states of the Union.

In the Pitner Case, 44 Tex. 578, same being a case in which the only issue was the right to a discharge on habeas corpus, upon a plea of former acquittal, Chief Justice Roberts upheld the action of the lower court in refusing such relief, and says:

"That habeas corpus is not the proper remedy in such a case has been decided substantially by this court in accordance, it is believed, with well-established authority."

This case is cited with approval in the Brill Case, 1 Tex. App. 152, in which similar relief was sought and denied, Judge Winkler holding in that opinion:

"Agreeable to the case made by the record, habeas corpus is not the remedy for the wrong complained of. Perry v. State, 41 Texas, 488. The writ of habeas corpus is not the proper remedy to try the issue of autrefois acquit; the appropriate remedy is by special plea entered in the court in which the indictment is pending under which the party is held. Pitner v. State."

In Ex parte Rogers, 10 Tex. App. 655, the Pitner Case is again approved, and Presiding Judge White there says:

"While we do not feel called upon to decide whether or not the same rule applies to a plea of former jeopardy, we feel authorized in saying that the pleas have many characteristics in common, and much of the same reasoning is applicable and strong in support of both."

In the Griffin Case, 5 Tex. App. 457, in an opinion by Judge White, it is held:

"The writ of habeas corpus is not designed to effect an appeal or operate as a writ of error or certiorari; and the court, on habeas corpus, will not, for the purpose of discharging the applicant, consider the sufficiency of facts relied on as evidencing a former acquittal for the same offense for which he is in custody."

In Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, the present presiding judge of this court, in a case in which the only question was that presented here, sustained the same position in an opinion, the gist of which is tersely expressed in the syllabus as follows:

"The writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy."

This rule of the courts is in consonance with sound reason and is adhered to by the courts of most of the states of the Union whose opinions are before us. State v. Sheriff, 24 Minn. 87; Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272; Ex parte Hartman, 44 Cal. 32; Steiner v. Nerton, 6 Wash. 23, 32 Pac. 1063; In re Allison, 13...