Ex parte Turman

• Court: Texas Supreme Court
• Writing for the Court: BELL
• Citation: Ex parte Turman, 26 Tex. 708 (Tex. 1863)
• Decision Date: 01 January 1863
• Parties: EX PARTE E. M. TURMAN.

26 Tex. 708

EX PARTE E. M. TURMAN.

Supreme Court of Texas.

1863.

The provision of the constitution of the state and of the Confederate States, guarantying to every citizen a speedy and public trial in all criminal accusations, cannot be held to mean, that in all possible vicissitudes of human affairs, a person who is accused of a crime shall have a speedy and public trial, in due form of law; but it was intended to prevent the government from oppressing the citizen, by holding criminal prosecutions suspended over him for an indefinite time; and to prevent delays in the customary administration of justice, by imposing upon the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations.

This constitutional provision applies to all criminal accusations, without respect to the grade of crime of which the accused may stand charged; and while it is intended for the protection of the citizen, it does not place him upon such a vantage ground that the state cannot demand from him such services as under the circumstances of the country he ought, for the public good or for the public safety, to render.

The state by her militia law has not exempted from military service persons who are under bond to answer criminal accusations of any kind; nor does the exemption law of the Confederate States excuse such persons from service; but, by necessary construction, the militia law of the state and the conscript laws must be held to operate only on persons who are enjoying the rights of citizens, and ?? the exercise of personal freedom.

One who is under bond to appear before the civil tribunals is to a certain extent in the custody of the tribunal or of the law; but being in the actual enjoyment of personal freedom for the time being, a party may be required by the state to render any service not inconsistent with the qualification which has been by law imposed upon the right of a party to enjoy his freedom, and not inconsistent with the policy which the state has declared by her general law for the punishment of crimes.

It seems that the district court, having a party under bond, has the power to issue a writ to a military officer in a camp within its jurisdiction, requiring him to appear before the court and to bring the party into court for trial; and it would be the duty of the officer to obey such writ.

A party under bond for his appearance to answer a charge of felony is not thereby exempted from military service in the state or Confederate army, during the pendency of the accusation.

TRIED before the supreme court sitting at Tyler. Applicant petitioned for the writ of habeas corpus on the 13th day of May, 1863, alleging that he was illegally restrained of his liberty by S. M. Warner, in Smith county. Writ issued May 14, 1863. Respondent made his return to the writ on the 15th day of May, 1863, in which return he says that applicant reported to him under orders from Gen. D. B. Martin, general enrolling officer eastern district of Texas, on the 14th day of March, 1863, and that he holds applicant only as a conscript liable to do military duty under the Confederate States conscript laws. On the 23d of January, 1863, applicant was indicted by the grand jury of Smith county, for “knowingly, maliciously and advisedly discouraging the people from enlisting into the service of the Confederate States of America, and did then and there knowingly, maliciously and advisedly discourage the people from enlisting into the service of this state, the said state of Texas, and then and there willfully and maliciously did dispose the people to favor the enemy.” On the 14th of March, 1863, the applicant gave bond for his appearance before the district court of Smith county to answer said indictment.

Attorney General, for respondent.

BELL, J.

Application to be discharged from the restraint in which the applicant alleges that he is held by S. M. Warner.

We have given the case of the applicant all the consideration possible, in view of the circumstances under which it has been presented to us; and we are of opinion that the applicant ought to be remanded into the official custody of the respondent, S. M. Warner.

The questions involved in the case are of great magnitude, and they cannot, by any means, be said to be free from difficulty. Some of the most important rights of the citizen, some of his highest duties to the state, the public policy of the state in respect to the punishment of high crimes, and the relation between the state government and the Confederate government are, to a certain extent, concerned in the decision of a case like the present. The constitutions of the state and of the Confederate States guaranty to every citizen a speedy and public trial, “in all criminal accusations.” This provision of our constitutions must receive a reasonable interpretation. It cannot be held to mean that in all the possible vicissitudes...