Yarbrough v. State

• Decision Date: 31 December 1847
• Citation: 2 Tex. 519
• Parties: MATTHEW YARBROUGH v. THE STATE OF TEXAS
• Court: Texas Supreme Court

2 Tex. 519

MATTHEW YARBROUGH

v.THE STATE OF TEXAS

Supreme Court of Texas.

December Term, 1847.

Appeal from Montgomery County.

Under the laws of this state, an appeal does not lie from the award of a district court refusing bail, and remanding a prisoner charged with a crime, upon the return and examination, upon a habeas corpus.

Alexander, for appellant.

Harris, Attorney General, for appellee.

Mr. Justice WHEELER delivered the opinion of the court.

This is an appeal from a judgment of the district court of Walker county, refusing bail to the appellant, a prisoner brought before the court on a writ of habeas corpus.

It appears that the prisoner had been committed to jail by an examining court consisting of two justices, in Montgomery county, on a charge of murder. He was subsequently brought before the district court upon habeas corpus; and upon an examination of the witnesses and hearing the evidence, both for and against the accused, the court adjudged the imprisonment legal and remanded the prisoner. From this judgment the prisoner appealed; and now, by his counsel, insists that the judgment is erroneous; that it be reversed, and that he be admitted to bail.

The case is brought before us at so late a day of the session that we should be inclined to defer its decision until the next term, did we feel any difficulty as to its correct disposition; or, did not the nature of the case seem to require as speedy a determination as may be consistent with a due consideration of the important question now first presented for our decision. That question is, will an appeal lie from the award of the district court remanding a prisoner charged with a crime, upon the return and examination, upon a habeas corpus? The decision of this question must depend mainly upon our own local laws.

The jurisdiction of this court is conferred and defined by the 3d section of the 4th article of the constitution, which declares that “the supreme court shall have appellate jurisdiction only, which shall be co-extensive with the limits of the state; but in criminal cases and in appeals from interlocutory judgments, with such exceptions and under such regulations as the legislature shall make.”

The same section provides that “the supreme court and judges thereof shall have power to issue the writ of habeas corpus.” The 10th section provides that “the district court shall have original jurisdiction in all criminal cases;” and that “the said courts and the judges thereof shall have power to issue all writs necessary to enforce their own jurisdiction, and give them a general superintendence and control over inferior jurisdictions.” The Bill of Rights, section 9, declares that “all persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great; but this provision shall not be so construed as to prohibit bail after indictment found, upon an examination of the evidence by a judge of the supreme or district court, upon the return of a writ of habeas corpus,” etc.

By the habeas corpus act, 4 Stat. 1840, p. 32, section 5, it is provided that the supreme or district court or any judge thereof may issue the writ, and “that the court or judge before whom the prisoner shall be brought, shall, without delay, proceed to inquire into the cause of his imprisonment, and shall either discharge him, admit him to bail, or remand into custody, as the law and evidence shall require.”

From these several provisions it is apparent:

1st. That the authority and jurisdiction of the supreme and district courts and of the several judges thereof, in proceedings upon habeas corpus in criminal cases, are co-extensive and concurrent.

2d. That the court or judge before whom the writ is returnable is not confined to the questions of law arising upon the return, but may examine into the merits of the commitment, and hear the allegations and proofs arising thereon, in a summary way, and decide both the law and facts, and dispose of the party “as the very truth of the case shall require.” Id. sec. 6, and see 2 Kent's Com. 2d ed. 30, 31. And hence the conclusion seems plainly deducible, that no appeal could have been intended from the decision of the judge or court upon a habeas corpus in a criminal cause; for:

1. An appeal in such case would present the anomaly of an appeal from one judge or court to another, whose powers and jurisdiction are co-ordinate and concurrent with, and in no respect different from the former; for, as to the granting of the writ, and all the subsequent proceedings upon a habeas corpus, there is no respect in which the authority, powers and jurisdiction of any one judge, of either a district or the supreme court, differ from those of every other or of either court. The authority conferred by the statute upon each judge and court is the same. Neither sustains to the other the relation of a superior or an inferior; and the word superior or inferior can with no propriety be applied to the jurisdiction exercised by either. It is in each the same, one and identical. An appeal, therefore, in such case would seem to involve an absurdity. It would be an appeal from a jurisdiction to itself.

The writ of habeas corpus, it has been said, “is in the nature of a writ of error, to examine the legality of the commitment,” per Marshall, C. J., 3 Pet. 202. And the issuing of the writ and the action upon it have been held to be the exercise of appellate jurisdiction. 4 Cranch, 101;7 Pet. 573. “This court, said Mr. J. Baldwin in Holmes v. Jennison, 14 Pet. 651, has declared this power to be appellate and not original; so I shall take it on its authority, though if the point was new it would seem to me to be the exercise of a special authority given by the judiciary act for the specific purpose therein set forth. ….. Taking, however, the power to issue the writ and the action upon it to be appellate, then every district judge can exercise it to the same extent that this or a circuit court can.” But whether the jurisdiction conferred by our laws in the present case be an appellate or a ““special” original jurisdiction, it evidently is one and the same in each judge and court; and by whomsoever rightfully exercised, the effect and consequence is, in each instance, the same.

2. The character of the proceedings and the nature of the investigation and trial instituted under our statute seem also to forbid the conclusion that an appeal was intended.

The rule of the English law doubtless is, that on habeas corpus the examination, as to guilt or innocence, cannot under any circumstances extend beyond the depositions or proofs upon which the prisoner was committed. 1 Chit. Cr. L. 129, Am. ed. of 1836, and cases cited from 2 Str. 1138. “This would be so, even on habeas corpus before an indictment found, however loosely the charge might be expressed in the warrant of commitment.” Per Cowen, J., 1 Hill, 394. And in the case of The People v. McLeod, Id. 377, which excited so much interest and elicited the most thorough investigation, it was held by the supreme court of New York that the provision in the revised statute of that state, which differs in no material respect from the provision of the 6th section of our habeas corpus act, was not intended to give a party, on habeas corpus, the right of summary trial as to the question of guilt or innocence; but merely to enable him, by evidence aliunde the return, to disprove the fact of his being detained on the process or proceeding set forth; or, perhaps, to show that by some subsequent event, e. g., a pardon, reversal of judgment, etc., it had ceased to be lawful cause of detention. Id. 404. “Mere evidence of innocence,” it was said, “cannot be used on habeas corpus as an argument for letting the prisoner to bail, if the application be after indictment found. And even when the application is before indictment, the right of inquiry as to guilt or innocence is limited to the depositions and proofs on which the commitment was ordered.”

It was, however, decided by the late supreme court in the case of The Republic v. Wingate, decisions of December term, 1845, that after an indictment for murder the prisoner was entitled to an examination of the witnesses as to his guilt or innocence, upon an application for bail. The principle of the decision is, that a party may be entitled to bail after an indictment for a capital crime, and that any evidence which would be admissible on the final trial before the jury may be received on an application for bail. The 9th section of the bill of rights before cited seems to have been intended as an affirmance of the principle asserted in this decision. If, then, evidence touching the question of guilt or innocence may be received on an application for bail, after indictment, it is certainly admissible on habeas corpus, before indictment. And under this view of the law as asserted by the decision referred to, and affirmed by the state constitution, the practice adopted by the district court in the present instance, of an original examination on habeas corpus, as to the question of guilt or innocence, and not restricted to the depositions and proofs upon which the prisoner was committed, appears to have been warranted. If, then, this be regarded as the mode of trial, on the return of a habeas corpus, recognized by the statute, it affords a strong inference against the supposition that an appeal from the award or decision upon it was intended. It can scarcely be supposed that even three judges will be...