Ex Parte Wilkinson

• Decision Date: 23 December 1925
• Docket Number: (No. 9965.)
• Citation: 278 S.W. 426
• Parties: Ex parte WILKINSON.
• Court: Texas Court of Criminal Appeals

278 S.W. 426

Ex parte WILKINSON.

(No. 9965.)

Court of Criminal Appeals of Texas.

December 23, 1925.

Appeal from Floyd County Court; E. C. Nelson, Jr., Judge.

Petition by Annie Wilkinson for writ of habeas corpus. From a judgment refusing discharge, petitioner appeals. Reversed, and petitioner's discharge ordered.

Mathews & Folley, of Floydada, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

HAWKINS, J.

By an order of the justice of the peace, appellant was required to enter into bond in the sum of $500, conditioned that she would not commit a threatened assault upon one Velma Still, in default of which bond she was remanded to the custody of the sheriff of Floyd county to be confined in jail. (This proceeding was under articles 79 and 80, C. C. P. 1925 Revision.) Appellant was taken into custody under this judgment. She applied to the county judge of Floyd county for writ of habeas corpus, alleging in her petition that she was illegally restrained of her liberty by virtue of such order, because the bond was excessive, and because the facts were not sufficient to authorize the justice of the peace to require bond in any sum.

The statute provides for no appeal from the order of a magistrate requiring a peace bond. If appellant had any remedy, it was by resort to habeas corpus proceeding. Section 16, art. 5, of the state Constitution empowers judges of the county courts —

"to issue writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court, or any other court or tribunal inferior to said court."

It was under this provision of the Constitution that appellant sought relief. Upon the hearing, the learned trial judge held that he only had authority to inquire whether the bail required was excessive. He found the amount to be excessive and reduced it to $250, but declined to investigate the truth of the matters upon which the order of the justice of the peace was based. From the judgment of the county judge, this appeal is taken.

We think the learned trial judge fell into error in holding that he had no right to inquire whether the facts supported the order entered by the justice of the peace. Otherwise one who might be held in custody by a purely arbitrary act of such officer would be without remedy. The principle involved is quite similar to that where a party is held in contempt of court and seeks enlargement by appeal to the writ of habeas corpus. It now appears to be well settled in this...