Ex Parte Walker

• Decision Date: 14 December 1889
• Citation: 13 S.W. 861
• Parties: <I>Ex parte</I> WALKER.
• Court: Texas Court of Appeals

13 S.W. 861

Ex parte WALKER.

Court of Appeals of Texas.

December 14, 1889.

Appeal from an order denying a writ of habeas corpus, made in chambers by George McCORMICK, Judge of twenty-fifth district.

Mr. Kennon, for relator. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Appellant is in custody, charged with murder in the first degree, and upon an examination of the case on habeas corpus was denied bail, and has appealed to this court. It is agreed that the proof is evident that the applicant is guilty of murder in the first degree. It is also agreed that at the time applicant committed the murder he was not 17, but was over 16, years of age. Counsel for applicant contends that as, under the law, the applicant cannot be punished with death because he had not arrived at the age of 17 years at the time he committed the murder, therefore the case, as to him, is not a capital one, and he is entitled to bail. "All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident." Bill of Rights, § 11. A "capital offense" is one for which the highest penalty is death. Pen. Code, art. 55. Murder in the first degree is a capital offense. Id. art. 609. But a person who commits murder in the first degree before he arrives at the age of 17 years cannot, under our statute, be punished capitally; that is, with death. Id. art. 35. Does this statute entitle the applicant to bail? We think it does. As to him, the punishment cannot be death, and his offense is not, therefore, a capital one; for an offense is not capital which may not be punished with death. This statute abolishes capital punishment in all cases where the offender has not, at the time of the commission of the offense, arrived at the age of 17 years. Whenever the death penalty is abolished by law, the offense to which it was attached is no longer a capital one. In re Perry, 19 Wis. 676. We conclude that by force of said statute the applicant is entitled to bail.

In an able brief and argument, the assistant attorney general questions the constitutionality of the statute exempting persons under 17 years of age from the death penalty, upon the ground that it is class legislation, and contrary to the principles of our government. We do not regard the statute as obnoxious to this objection. It is not class legislation, within the meaning of that term. Cooley, Const. Lim. 487 et seq. As to the policy of the statute, that was for the consideration of the...