Millikin v. Jeffrey

• Decision Date: 25 October 1927
• Docket Number: (Motion No. 7764.)
• Citation: 299 S.W. 393
• Parties: MILLIKIN v. JEFFREY, District Judge.
• Court: Texas Supreme Court

Page 393

299 S.W. 393

MILLIKIN v. JEFFREY, District Judge.

(Motion No. 7764.)

Supreme Court of Texas.

October 25, 1927.

Motion by Avery V. Millikin to file a petition for writ of mandamus to be directed to Hon. M. C. Jeffrey, District Judge, Twenty-Second Judicial District of Texas. Motion overruled.

See, also, 299 S. W. 397.

Clarence J. Ginn, of Dallas, and William E. Hawkins, of Breckenridge, for relator.

CURETON, C. J.

Avery V. Millikin has filed a motion for leave to file a petition for the issuance of a writ of mandamus to Hon. M. C. Jeffrey, judge of the Twenty-Second judicial district court.

The relator was convicted of the crime of murder in the district court of Caldwell county, over which the respondent was, and is, the presiding judge. This conviction was affirmed by the Court of Criminal Appeals, and rehearing denied June 15, 1927. Millikin v. State, 296 S. W. 547.

Relator was in the penitentiary at Huntsville, awaiting execution, when the necessary steps were taken by or for him to have him tried for insanity in accordance with title 12 of the Code of Criminal Procedure of the state. After this action, application was made to the Court of Criminal Appeals for a writ of habeas corpus and mandamus suspending the execution of the relator and directing the judge of the district court of Caldwell county to try him on the plea of insanity in accordance with the statutes. These writs were granted, and in obedience thereto, on October 14, 1927, the respondent called a special term of the district court of Caldwell county for October 20th, and is now engaged in the trial of the insanity plea.

The complaint made in the petition for mandamus accompanying the motion which we are considering shows that jury commissioners were not ordered by the district judge when he called the special term of court to select persons, as provided in the statute, from which a jury should be drawn in the trial of the insanity plea. The relator alleges that the failure of the district judge to appoint jury commissioners and have jurors drawn by them was not the result of inadvertence or oversight on the part of the district judge, but of deliberate design and intention. Relator also attaches to his petition a copy of a motion presented to the district judge, protesting against the trial of the case in the absence of a jury for the week selected and drawn according to law by a jury commission appointed or to be appointed at the special term of the court. In this motion the relator prayed:

That the court "forthwith appoint such jury commissioners and direct and require them to proceed in accordance with law to select and draw a statutory jury for this week and for the purpose of trying said plea and issue of insanity."

The motion was overruled, and relator was compelled to go to trial with a jury summoned by the sheriff in the usual manner.

The relief asked for in this court, as shown in the petition accompanying the motion for leave to file, is:

That this court issue "forthwith a writ of mandamus addressed to said Judge M. C. Jeffrey as district judge of said judicial district of Texas and of said district of Caldwell county, requiring him to proceed no further with the trial in that court upon said plea and issue of insanity before such picked-up jury, and directing and requiring him to appoint jury commissioners at and during said special term of court, and to direct them to select and draw in the manner and form required by law jurors to try said issue of insanity."

The first question which presents itself for our consideration is one of jurisdiction on the part of the Supreme Court to issue the writs prayed for under the facts stated in the application. The Court of Criminal Appeals, a court of substantially co-ordinate jurisdiction and power over the issuance of writs of habeas corpus, has heretofore issued a writ of habeas corpus and ancillary writ of mandamus, having for its purpose the staying of the execution of the relator and giving him a trial in accordance with the statute on the issue of his present insanity, and therefore of his immunity while in that condition from execution.

Article 921 of the Code of Criminal Procedure provides that, if it be made known to the trial court at any time after conviction that a defendant is insane, then a jury shall be impaneled as in criminal cases to try the issue of insanity. From this statute it is plain that the issue of insanity, such as presented in relator's case, requires a trial by jury. Upon compliance with the requisites of title 12 of the Code of Criminal Procedure by relator, providing for the trial of one who becomes insane after conviction, and upon the failure or refusal of those having the custody of the relator to accord him such a trial, he became entitled to a writ of habeas corpus, not, however, to release him from custody, but for the purpose of preventing his execution and of according him a statutory trial by a jury in the district court of the county of his previous conviction for crime. The statute not only provides for trial by a jury, but for that trial to be in the county in which he was originally convicted. Vernon's Texas Code of Criminal Procedure, arts. 921, 930. A trial by a jury in the county of his conviction was the only lawful relief which he could receive, the failure to grant which caused him to apply to the Court of Criminal Appeals for a writ of habeas corpus, and caused that court to award the writ. In order to make the writ of habeas corpus effective, and award relator his lawful right to a statutory trial, the Court of Criminal Appeals was compelled to make its writ returnable to the district court of Caldwell county, and direct that court to proceed to hear the plea of insanity in accordance with the statutes. The ancillary order of the court to the trial judge to hear the issue of insanity was its sole and only way of making effective its action under its constitutional jurisdiction and power to award the writ of habeas corpus.

It is quite true that the Court of Criminal Appeals does not have general power to issue writs of mandamus, or the power to require a trial on the issue of insanity after conviction when that trial is not a part of the relief to be granted by it under a writ of habeas corpus. Ex parte Quesada, 34 Tex. Cr. R. 116, 29 S. W. 473. However, the Court of Criminal Appeals and the judges thereof have power, under the Constitution, to issue writs of habeas corpus and such other writs as may be necessary to enforce their own jurisdiction; and, when the issuance of a writ of mandamus is necessary to the effective exercise of its original power to issue a writ of habeas corpus, the Court of Criminal Appeals has the power to issue such a writ, and does issue it. Vernon's Annotated Constitution, art. 5, § 5; Ex parte Martinez, 66 Tex. Cr. R. 1, 145 S. W. 959, 965; Ex parte Carlile, 92 Tex. Cr. R. 495, 244 S. W. 611.

In the case last cited an application for writ of habeas corpus was presented to the Court of Criminal Appeals, in which, in order to determine the relators' rights, it was necessary to pass on certain facts. The district court had declined to pass on these facts in an application previously made to it. The Court of Criminal Appeals declined on the application for habeas corpus to hear the facts necessary to be heard in determining the issue made, stating that the Court of Criminal Appeals "is not a nisi prius court, and is without authority to hear evidence and from it determine issues of fact in any case save one involving the jurisdiction of this court." The court, however, held that, inasmuch as the relators there were entitled to a trial on the facts by a court having the power to hear them, the application for writ of habeas corpus should be granted, with directions to the district court to hear the case. The court, in part, said:

"Inasmuch as the right of applicants to a bond commensurate with the facts depends upon what those facts may be shown to be, and this must be determined in a court having power to hear the facts, the application on behalf of each applicant is granted, and the writ of habeas corpus will be issued by the clerk of this court and made returnable before the honorable district court of Cameron county, with directions to said court to hear the facts, and if he be satisfied that applicants have been tried and acquitted for the identical acts, transactions, and offenses embraced in the indictments under which they are now held, that said court should fix and grant to said applicants bail in a nominal sum for their appearance before said court at a time when he may make final disposition of said cases upon a trial on the merits." (Italics ours.)

That case is precisely in point here on the question of the jurisdiction of the Court of Criminal Appeals and what it has done. In that case the facts were to be investigated and determined as bearing upon the right of the applicants there for relief. The Court of Criminal Appeals, while granting the writ of habeas corpus, returned it to the district court having jurisdiction of the offense charged against the applicants, with express directions to that court to try the case and determine the questions and issues made by the facts. In the instant case the Court of Criminal Appeals has taken precisely this course. That court had no power to hear the facts and determine the issue of the present insanity of the applicant, for the reasons: First, as stated in the Carlile Case, that the court is not a nisi prius court; and, second, because cases of insanity after conviction and trial must be tried before a jury. The Court of Criminal...