Jordan v. State

• Decision Date: 01 January 1855
• Parties: SAMUEL JORDAN v. THE STATE.
• Court: Texas Supreme Court

14 Tex. 436

SAMUEL JORDAN

v.THE STATE.

Supreme Court of Texas.

1855.

An appeal does not lie from a judgment of the District Court committing a witness to jail until he consents to answer certain questions, although the witness may have purged the contempt to the satisfaction of the court below, as appears by its judgment, and honestly refuses to answer, on the ground that the question is one which he is not bound by law to answer. (Note 65.)

The writ of habeas corpus does not lie to revise the action of a court of competent jurisdiction in cases of commitment for contempt.

The granting of the writ of habeas corpus is not a matter of course in this State. The judge or court to which application is made must have “probable cause to believe” that the party applying for the writ “is detained in custody without lawful authority.” (Hart. Dig., art. 1576.) The cause of his detention, if known, must be shown to the court upon the application; and unless it is made to appear that there is probable cause to believe that the imprisonment complained of is without lawful authority, the writ cannot rightfully be granted.

There appears to be no distinction, so far as the right to an appeal or to the writ of habeas corpus is concerned, whether a commitment is by way of punishment for a willful contempt, or by way of restraint to compel the performance of an act which the defendant honestly, and without any intentional disrespect to the court, refuses to perform, on the ground that he is not bound by law to do so, except perhaps that the question of jurisdiction of the subject-matter might arise in the latter class of cases, but not in the former.

Appeal from San Augustine. Petition for a habeas corpus, alleging “that he is (as he is informed and believes) thus unlawfully imprisoned by and in pursuance of an order of the court now in session because he refused this day to answer questions concerning playing at cards propounded to him by the grand jury then in session; and your petitioner avers that the grounds upon which he so refused are that he could not answer said questions without furnishing evidence against himself, and that his refusal to answer was not from any disrespect of the court or its authority.” Sworn to.

The petitioner was brought into court, “this writ and return thereon having been waived by all parties, inasmuch as the court and parties were cognizant of the facts of the case, to wit, that the said Jordan was imprisoned by order of the court, which required him to be imprisoned until he would answer the questions propounded by the grand jury, and the evidence having been submitted to the court, and the court being satisfied that the witness does not intend a contempt, but only to assert a legal right, as he supposes and conceives,” &c., remanding the prisoner as before. Whereupon Jordan gave notice of appeal, and entered into recognizance to appear from term to term to abide the judgment on appeal. There was a statement of facts.

By express statute in this State appeals are allowed in all cases where a party is remanded on habeas corpus; but cases of contempt of court are excepted from the general statute of appeals in criminal cases.

Motion by the Attorney General to dismiss for want of jurisdiction.

Attorney General, for motion to dismiss. There can be no mistaking the character of the offense, and of the consequent order of the court, which lie at the foundation of this proceeding, notwithstanding the District Court seems, in its tenderness for the liberty of a citizen and in its willingness to devolve its own peculiar responsibility upon this court, to have concurred with appellant and his counsel in forbearing to give a name to the offense and the commitment, since, without charging the substance of the one or the other, to give them their appropriate names would have instantly been fatal to the proceeding by habeas corpus, and consequently to the right of appeal to this court, which was palpably the object of all parties below. The offense of Jordan was a contempt of court, and his commitment was in execution of a sentence of conviction for it. Now, while the District Court of San Augustine county could, in its original capacity and by its inherent power, have called its prisoner before it, by a simple order or direction to its bailiff, to allow him the opportunity of purging himself from the contempt, or of submission, or perhaps to reinvestigate the grounds of the conviction or to modify the punishment, how could it, any more than any other court or judge, issue this writ to revise, as on a writ of error, its proceedings in a matter of contempt? For such is the effect of a writ of habeas corpus. (Hale P. C., 584; Case of J. V. N. Yates, opinion by Judge Kent, 4 Johns. R., 371; Yates v. Lansing, opinion of the court of errors of N. Y. by Platt, Senator, 9 Johns., 414; which latter opinion overruled that of Senator Clinton in 6 Johns. in many points, and sustained that of Judge Kent in 4 Johns., and ended this controversy.)

O. M. Roberts, contra. The act of the witness was the assertion of a constitutional right by refusing to comply with an illegal order of the judge. If that be so, it is not a contempt. The judge is satisfied that there is no intentional contempt. But who is the judge of that? The old doctrine was that each court is to judge for itself; nor am I aware that there has been any settled change or variation from it. This must presuppose that the court has acted within its authority, and on a person within the scope of its jurisdiction. We frequently must resort to extreme cases to illustrate a principle. Suppose that a judge of the County Court should order the clerk to tear up and burn the records of an obnoxious case in his office, and the clerk should respectfully and firmly decline doing it. This is spread upon the record, and upon it a judgment is pronounced, ordering the sheriff to imprison the clerk until he burns the records. Cannot a district judge relieve him?

The rule then is to be understood with the qualification that if the thing ordered to be done is clearly beyond the authority of the court, or if the person by his acts has clearly not brought himself within the jurisdiction of the court, any court of general jurisdiction may relieve him. What excess of authority can be greater than for a court to force a witness to disclose his accomplices and all the facts (except his own acts) of a transaction in which he has participated, and which disclosure will point out the means of his own conviction not possibly or probably, but certainly?

These views are drawn and deduced from the very interesting and able opinions in the cases of Yates v. The People, 6 Johns. R., and Yates v. Lansing, 9 Johns. R.; and see particularly opinion of Clinton and two cases of “Paty” and ““Bushel,” referred to therein, 6 Johns. R., 467, 468.

Our laws have placed this act upon a different position from ordinary contempt by specially enacting a punishment to enforce the orders of the court. “Any witness refusing to give evidence may be committed to the county jail until he shall consent to give evidence.” (Hart. Dig., 250, art. 722.) At the same session, (May, 1846, Hart. Dig., art. 645,) “That said courts shall have power to fine not exceeding one hundred dollars for contempt of court, and may, in their discretion, imprison any person guilty of contempt not exceeding three days.” The former act is a specific mode of enforcing a particular duty; the latter of enforcing the rights of the court.

In this case the court whose order has been disobeyed grants the writ of habeas corpus, hears the party, and remands him, not as a punishment to inspire respect for his public authority, but to compel him...