Perry v. State

• Decision Date: 01 January 1874
• Citation: 41 Tex. 488
• Parties: N. S. PERRY v. THE STATE.
• Court: Texas Supreme Court

41 Tex. 488

N. S. PERRY

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Kaufman. Tried below before the Hon. M. H. Bonner.

J. J. Hill, for appellant, cited Pas. Dig., arts. 2625, 2627, 2628; Hurd on Habeas Corpus, 330, 331, 355, 360; Yarbrough v. The State, 2 Tex., 519;Ex parte Tobias Watkins, 3 Pet., 193; Cooley's Const. Lim., 348, and authorities in note 2; The People v. McLeod, 25 Wend., 483; Pas. Dig., arts. 2410 a,i 2410 ib, 2382, 3095, 3096; Counts v. The State, 37 Tex., 593;Slaughter v. The State, 24 Tex., 415; 2 Graham & Waterman on New Trials, and the note beginning on page 52, collating all the authorities.

George Clark, Attorney General, for the State.

MOORE, ASSOCIATE JUSTICE.

It appears from the record that appellant is held in custody by the sheriff of Kaufman county to answer five several indictments for theft, returned into the District Court of said county, wherein they are still pending and undetermined. It further appears that the writ of habeas corpus for which appellant prayed was not sought, that he might be enlarged on bail. But it is claimed by him that he is entitled to an absolute and unconditional discharge from custody. The right to a discharge is based upon the fact of appellant's having been previously convicted in said court, on another indictment for theft of a steer, found at the same term of the court as the indictments under which he is now held in custody. All of said indictments, it is insisted, having been found on the same evidence, and on account of the same transaction, are, therefore, claimed to be for one and the same supposed offense.

An application for a habeas corpus for the purpose and under the circumstances for which this was made, is certainly novel, and without precedent in the courts of this State. It would seem to have been long since much too well established by the common law, as well as our statutes, that an indictment not void upon its face, regularly returned to and pending in a court having jurisdiction thereof, could only be disposed of by some appropriate proceeding in such court, for an experiment such as the present.

The practice at common law in the court of the King's Bench is thus stated in Wilmot's Opinions, 106: (Hurd on Habeas Corpus, 331.)

“In imprisonment for criminal offenses the court can act upon it only in one of three manners:

1. If it appear clearly that the fact for which the party is committed is no crime, or that it is a crime, but he is committed...