Edwards v. Republic of Texas ( 1843 )

OCHILTREE, Justice.—Monroe

Edwards, the plaintiff in error, was brought by writ of habeas corpus before the Hon. James W. Robinson, district judge, etc., on the 7th day of May, 1839, and after the hearing of testimony was recognized in the sum of $10,000, conditioned that he should make his appearance before the honorable the District Court for the County of Brazoria, at a court which was held at Bra-zoria on ——, to answer a charge of forgery. At the fall term, 1839, of the District Court of Brazoria, Edwards having failed to appear, a forfeiture of his recognizance was taken and a judgment nisi was entered against him; which judgment, without the issuance of scire facias, was made final at the next succeeding term of the court. On the 29th of November, 1842, Edwards, by his attorneys, Harris and Pease, addressed a petition to the Hon. R. E. B. Baylor, judge of the Third District, praying that writs of error and supersedeas might be granted, and that the record of the above stated case might be sent up to the Supreme Court for its adjudication. The prayer of the petitioners was granted.

Without entering upon the consideration of the various errors assigned in this case, we are of opinion that there is a preliminary question which will dispose of it. Should the writ of error have been granted on the petition of the attorneys of Edwards?

To fly from the laws and justice of his country has been wisely held to be one of the most heinous offenses of which man can be guilty; and while he continues contumaciously to evade those laws by force, or absence, he is certainly not entitled to any very particular protection. Were a practice like the present to obtain, the administration of justice in criminal cases would soon be little better than a farce. An offender against the laws, who had been so fortunate as to obtain bail, would certainly in every instance try the strength of his recognizance before he would submit his person to the ordeal of justice. If the 'judgment of forfeiture should be reversed, his securities would be saved harmless, while he himself would escape, “unwhipped of justice,” to perpetrate his villainies upon the unfortunate community which had afforded him shelter. The remedy provided by the common law is commensurate with the offense, and though we have eschewed the process of outlawry as being incompatible with the genius of our institutions, yet we think that from the analogy which exists between the cases, we are fully authorized to retain the requisition of the common law, as applicable strictly to applications for writs of error in cases of outlawry, and to pronounce it as the judgment of this court, that in order to obtain a writ of error it is necessary in all criminal cases, on the trial of which his personal appearance is required by law, that the applicant should render himself into custody and come in person to the proper authority to pray it to be allowed him. 1 Chitty Crim. Law, 369.

Writ of error dismissed at the cost of the petitioners.

Dismissed.