Ex Parte Dave Augustine , 33 Tex. Crim. 1 ( 1893 )

The appellant, having been denied bail, prosecutes his appeal. The questions presented are legal, arising upon an agreed statement of facts, substantially as follows, to wit: On the 21st of December, 1,876, the grand jury of De Witt County preferred an indictment against appellant and others, charging them with the murder of Philip Brassell; that, on the 29th of the same month the cause was, on change of venue, transferred to Bexar County; that on account of sickness, rendering it dangerous to longer confine appellant, he was admitted to bail in the sum of $10,000, and this occurred in December, 1882. The following January, the State, after exhausting diligence, could not secure the attendance of the witnesses for the prosecution, and, being unable to longer continue the case, dismissed it as to relator. On the 31st day of December, 18191, the grand jury of De Witt County reindicted the relator for the same murder, and the venue was changed to Gonzales County, where it was again continued by the State, on June 25, 1893.

It was admitted, and shown to be true, that the offense charged in the indictment found in 1876 was identical with that, set forth in the bill preferred in 1891.

We deem it unnecessary to discuss more than one of the legal questions presented for decision, to wit: When a, person charged with a capital offense has once been admitted to bail after indictment found, be shall not be subject to be again placed in custody on a new indictment without bail for the same offense except on surrender by his sureties, whether the bail be granted on the facts or on account of ill health. In other words, when bail is once granted after indictment found, it is beyond the power of the, State to rearrest for that offense on a new indictment and refuse bail, the right to bail being res adjudicata. This proposition is fully sustained by the authorities, were it necessary to look beyond our own statutes. Wells' Res Adjudicata and Stare Decisis, sec. 421; Church on Habeas Corpus, 386; Jilz's case, 64 Mo., 205. Looking to our own legislation we find that article 187 of the Code of Criminal Procedure provides: "Where a person once discharged, or admitted to bail, is afterwards indicted for the same offense for which he has been once arrested, be may be committed on the indictment, but he shall be again entitled to the writ of habeas corpus, and may, notwithstanding the indictment, be admitted to bail, if the facts of the case render it proper; but in cases where, after indictment found, the cause of defendant has been investigated on habeas corpus, and an order made either remanding him to custody or admitting him to bail, he shall neither be subject to be again placed in custody, unless when surrendered by his bail or when the trial of his cause commences before a petit jury, nor shall he again be entitled to the writ of habeas corpus, except in special cases mentioned in articles 155 and 189."

Article 155 has reference to cases where the health of the accused is of such a nature as to endanger his life, by further confinement.

Article 189 applies to cases where, subsequent to the first application, important, testimony has been obtained which was not within the power of the applicant to produce at the former hearing.

These provisions are enacted for the benefit of the accused, and can only be invoked in his behalf. The State is not entitled to a new trial, and is debarred the right of appeal by the Constitution of this State, and there is no way by which the State can vacate a judgment and retry the accused of its own right.

A judgment granting bail is final as to the State, and even to the accused, unless be should seek to reduce the amount of bail granted by appeal or otherwise. Whether the investigation after indictment found, mentioned in article 187, related to the facts or when bail is granted on account of ill health, we think is not material, because in, neither event can the State cause the rearrest and second incarceration of the, accused for the same offense. We deem it unnecessary to discuss this question at length.

The judgment is reversed, and the relator granted bail in the sum of $10,000. The sheriff of Gonzales County is directed to take his bond for that amount in the, terms of the law governing such cases.

Reversed and bail allowed.

Judges all present and concurring.