Ex Parte Reynolds , 35 Tex. Crim. 437 ( 1896 )

This is an original application for a writ of habeas corpus, now before this court for trial. The applicant sued out a writ of habeas corpus before us, alleging that he was illegally restrained of his liberty, because, he says, the indictment under which he was convicted and sentenced to the penitentiary was found by a body composed of fourteen persons. We have examined the evidence in the case, all being of record, and find that it is true, as alleged, that the indictment on which the applicant was tried, convicted, and sentenced to the penitentiary was returned into court by a body composed of fourteen men. The only question for our decision is, can the applicant obtain relief from imprisonment under the above state of case by a writ of habeas corpus? Section 10 of the bill of rights, provides, as a part thereof, that "no person shall be held to answer for a criminal offense, unless on indictment by a grand jury, except in cases where the punishment is by fine," etc. Section 13, Art. 5, of the Constitution, provides that "grand and petit juries, in the District Courts, shall be composed of twelve men." This court has held, and we see no reason for changing our opinion, that a body composed of more than twelve men is not a grand jury. See Lott v. State, 18 Tex.Crim. App., 627; McNeese v. State, 19 Tex.Crim. App., 48; Smith v. State, Id., Ex parte Swain, Id., 323; Rainey v. State, Id., 479; Wells v. State, 21 Tex.Crim. App., 594; Harrell v. State, 22 Tex.Crim. App., 692. The District Court, in felony cases, does not obtain jurisdiction of the offense, unless by indictment. There must first be the act of a grand jury before the court's jurisdiction can attach in such cases. A prosecution for a felony, without indictment by a grand jury, is not due process of law, in this State. There can be no indictment unless there was a grand jury. The verdict and judgment, without an indictment, in a felony case, are absolute nullities, and cannot be the basis or warrant for any commitment. Let us suppose that the applicant had been tried upon an information — could it be contended that the jurisdiction of the court attaches to that case? We think not. Let it be supposed that them was neither information nor indictment — could it be contended that the verdict of a jury, and judgment of the court thereon, would not be absolutely void? We think not. In this case, the court's jurisdiction not having attached, the court therefore had no jurisdiction of the subject matter. The conviction being without due process of law, and in violation of the plain requirements of the constitution, the warrant for the imprisonment of the applicant is therefore void, not voidable merely. We are not to be understood as holding that the applicant could obtain relief by habeas corpus because of a defective indictment, or an indictment that seeks to charge the offense for which he has been convicted, but in substance is defective; but we do hold, in a felony case, that he can obtain relief by habeas corpus, where there has been no indictment. We are not passing on the other question, as to defective indictments. This view of this question is in conflict with the proposition laid down in the headnotes in Ex Parte Fuller, 19 Tex.Crim. App., 241, but is in exact accord and is supported by the reasoning of the court in Lott v. State, 18 Tex.Crim. App., 627, and subsequent cases. We believe the reasoning of Judge Willson unanswerable, and the conclusion that a judgment without an indictment is absolutely void, and that the party can obtain relief by habeas corpus. It being understood between the Assistant Attorney-General and counsel for applicant that this record contains the facts, and that the State has nothing further to offer why the applicant should not be discharged, it is therefore ordered and decreed that the applicant be discharged from custody, and that the clerk forward a certified copy of this opinion to the officer in charge of the applicant, Larkin Reynolds, and that said applicant be at once discharged from custody.

Applicant Discharged.