McFarland v. Johnson

• Decision Date: 01 January 1863
• Parties: JACOB MCFARLAND v. G. W. JOHNSON.
• Court: Texas Supreme Court

27 Tex. 105

JACOB MCFARLAND

v.G. W. JOHNSON.

Supreme Court of Texas.

1863.

The respondent on an application for the writ of Habeas corpus cannot appeal from a judgment of the district court or a judge sitting in chambers. An appeal in such cases is restricted to the applicant.

A proceeding upon a writ of habeas corpus, when not used to relieve against illegal restraint under a criminal charge, cannot, in the proper sense of the term, be regarded as a civil suit; it should rather, it seems, be held the exercise of a special jurisdiction conferred by the constitution and laws, upon either the courts or judges, for the prompt relief of the citizen against any improper interference with his personal liberty.

APPEAL from Bowie. Tried below before the Hon. B. W. Gray.

The facts sufficiently appear from the opinion of the court.

S. H. Pirkey, for appellant.

W. S. Todd, for appellee.

MOORE, J.

This case is brought to this court by an appeal taken from a judgment of the Hon. B. W. Gray, judge of the eighth judicial district, on an application for habeas corpus heard before him, in open court, during the last term of the district court of Bowie county. And it presents for our consideration the important question, whether this court can, by the appeal of the respondent, acquire jurisdiction of the case.

No objection to the appeal has been raised by the applicant, and we have not, consequently, been aided in the investigation of the question by the argument of counsel.

As this is the first occasion that this point has been before the court, we have endeavored to give it such consideration as its importance demanded and the pressure of other business would permit, that we might neither rashly exercise an usurped and unauthorized jurisdiction, nor on the other hand deny to any one a constitutional right of being heard in the court of last resort.

The right of appeal (almost universally at the instance of the applicant) has been a frequent matter of debate in the American courts, and though it seems to be sanctioned and maintained to some extent by Chief Justice Taney and some of his distinguished associates of the supreme court of the United States, while it was the most learned and exalted tribunal of a once free and enlightened nation, it has been repudiated and denied by the almost universal weight of authority of the ablest courts and jurists of the continent. (See Weddington v. Sloan, 15 B. Mon., 147;Bell v. The State, 4 Gill., 304; Wade v. Judge, 5 Ala.; Barry v. Marcein, 5 How., 103; How v. The State, 9 Miss., 690; Ex parte Perkins, 5 Cal., 424. Per contra,Holmes v. Jennison, 14 Pet., 540; Ex parte Lafonta, 2 Rob., 495; Yates v. The People, 6 Johns., 338.)

It seems, also, to have been well settled in England, from the time of Lord Coke, that a writ of error will not lie upon an award made on the return of a writ of habeas corpus. (See opinion of Chief Justice Kent, in the case of Yates v. The People, 6 Johns., 423, and authorities there cited.)

These authorities, however, whether English or American, though entitled to our profoundest respect for the great learning and ability displayed by them, and although they may be profitably examined for the light they shed upon the origin, nature and object of the writ, and as aids to us in interpreting our statutes relating to it, cannot be referred to as determining in our courts the question of the jurisdiction of the court on an appeal. Our laws with reference to the writ furnish the rule by which the court must be guided. And unless there is a distinction growing out of the purposes for which the writ may issue, the Code of Criminal Procedure clearly negatives the right of the respondent to prosecute an appeal. In article 718 it is enacted that “An appeal may be taken from the district to the supreme court by the state in the following cases, and no others: 1. When the district court sustains an exception of the defendant to the indictment or information. 2. When the district court sustains a motion of the defendant to arrest the judgment.” And article 719 declares: “An appeal may be taken by the defendant in every case where judgment of conviction has been rendered against him in the district court, or where such a court or a judge thereof, or a judge of the supreme court, has decided against an application of the defendant under habeas corpus.”

It is very clear, as we have said, unless it can be held that an application of the character of the one now before the court does not come within the purview of these articles of the code, that they are conclusive against appellant's right to prosecute this appeal. Can this be done? We think not. It may be said that these articles of the code have reference only to applications for habeas corpus when the applicant is in custody after an indictment, or stands charged with a criminal offense; but when this is not the case, the application is to be regarded in the nature of a civil suit or proceeding, to which the same incidents and rights would attach as in other civil suits. This, however, to its full extent, is hardly correct, and rests upon a mistake as to the true object and purpose of the writ. “A procedure by habeas corpus,” says Judge Betts in the case of Barry v. Marcein, “can in no legal sense be regarded as a suit or controversy between private parties.” And the writ, it is said in Massachusetts, should always run in the name of the state. (See Comm. v. Briggs, 16 Pick., 203;Wade v. Judge, 5 Ala., 130.) And in the case of The State v. Cheeseman, 2 South., 445, Southard, J., says: “It is for the relief of the prisoner, and the prisoner only. It is to inquire why the liberty of the citizen is restrained.”

That the state has a direct and immediate interest in the wrongful detention of any of its citizens, and is bound to afford them the means of a speedy restoration of liberty, seems to have been the view taken of the matter by the legislature when enacting the Code of Criminal Procedure, for we find the proceeding by habeas corpus provided for, and proceedings under it regulated, not only in cases where the applicant is restrained under a criminal charge, but in all others where it may be issued “for the enlargement of persons illegally...