Millikin v. Jeffrey

• Decision Date: 27 October 1927
• Docket Number: (No. 11448.)
• Parties: MILLIKIN et al. v. JEFFREY, District Judge.
• Court: Texas Court of Criminal Appeals

Page 435

299 S.W. 435

MILLIKIN et al. v. JEFFREY, District Judge.

(No. 11448.)

Court of Criminal Appeals of Texas.

October 27, 1927.

Application for writ of mandamus by Avery V. Millikin and others against Hon. M. C. Jeffrey, District Judge. Motion for leave to file the application refused.

See, also, 299 S. W. 433; 299 S. W. 393; 299 S. W. 397.

William E. Hawkins, of Breckenridge, and Clarence J. Ginn, of Houston, for relators.

A. A. Dawson, State's Atty., of Austin, for the State.

PER CURIAM.

Under the above title there is presented to this court an application for a writ of mandamus.

Pursuant to article 5, § 5 of the Constitution of Texas, the statutory law confers authority upon this court to issue writs of mandamus agreeable to the principles of law regarding such writs "to enforce its jurisdiction." Acts 40th Leg. c. 38.

In another statute it is declared:

"No mandamus shall be granted on ex parte hearing; and any peremptory mandamus granted without notice shall be abated on motion." R. S. 1925, art. 2328.

Under the rules of the Supreme Court of this state, promulgated by virtue of the Constitution, and in rule 15, it is declared in substance that to invoke action of the court upon applications for mandamus there shall be presented with the petition a motion to permin the filing of the application, which motion will be considered in consultation at once, and, "if the court should be clearly of the opinion that upon the facts stated in the petition the writ should be awarded, the motion will be granted; otherwise, it will be overruled by an order made in open court and entered upon the minutes."

The document at present before the court will be considered in the light of the statutes and rule above mentioned as an application for leave to file a petition for mandamus.

The relief sought is that Hon. M. C. Jeffrey, judge of the Twenty-Second judicial district court of Texas, having on trial Avery V. Millikin upon the issue of insanity, be required to dismiss the jury heretofore impaneled for the trial of that issue; that he appoint jury commissioners to designate persons from whom a jury shall be selected, and that upon the report a new jury be impaneled in compliance with the terms of article 921, title 12, C. C. P. 1925; also to direct said judge to receive certain evidence which, in his judgment, is not admissible, and to require that the judge compel the official court reporter to record the evidence adduced on the lunacy trial.

The said Avery V. Millikin, on the trial in the district court of the Twenty-Second judicial district of Texas, sitting at Lockhart, was, at a former term, adjudged guilty of murder. Upon appeal the conviction was affirmed. See Millikin v. State (Tex. Cr. App.) 296 S. W. 547. The date of his execution was fixed for the 14th day of October, 1927. On the 13th day of that month, there was presented to this court upon his behalf an application for a writ of habeas corpus advising this court that there had been filed in the district court of the Twenty-Second judicial district of Texas, affidavits, in conformity with article 922, C. C. P. 1925, asserting that the said Millikin was insane; that the judge of the court mentioned had declined to award him a trial on the issue of insanity upon the ground that he was in doubt as to his jurisdiction to do so. Said petition further represented that the warden of the penitentiary in charge of the said Millikin, unless otherwise directed, would proceed with his execution immediately after 12 o'clock a. m. on the 13th day of October. Upon the application advising this court of the facts mentioned above, and having in mind article 921, C. C. P. 1925, reading as follows: "If it be made known to the court at any time after conviction, or if the court has good reason to believe that a defendant is insane, a jury shall be impaneled as in criminal cases to try the question of insanity" — the writ of habeas corpus was issued, directing that the execution be deferred; that the said Millikin be brought to Caldwell county and there, by a jury impaneled in the district court of the Twenty-Second judicial district, the question of his insanity be determined, and, ancillary to the said writ of habeas corpus and as essential to make it effective and enforce the jurisdiction of this court upon whose mandate the execution of Millikin was authorized, this court directed Hon. M. C. Jeffrey, judge of the said district court, to proceed with a trial of the said Millikin to determine whether his present status is that of an insane person.

It was judicially known to this court at the time of the issuance of said order that the regular term of the district court of Caldwell county would not begin until the ____ day of October, 1927; and it was further known that the said district court of the Twenty-Second judicial district of Texas was in session in another county of the district and that Hon. M. C. Jeffrey was there presiding.

From the documents before us, it is made known that Hon. M. C. Jeffrey, judge aforesaid, in obedience to the directions of this court, prepared to try the said Millikin upon the issue mentioned, and to that end ordered the organization of a special term of said court at Lockhart, in Caldwell county, at which place the law directed that such trial be had. The law pertaining to the selection of juries, so far as applicable, is contained in several statutes. In articles 2104-2107, R. S. 1925, it is declared that the district court, at each term, shall appoint...