Ex parte Jones ( 1879 )

Winkler, J.

The appellants and one Stearnes having been committed to the jail of Robertson County without bail, by a justice of the peace of that county, charged with the murder of one George Morse, sued out a writ of habeas corpus returnable before the Hon. Spencer Ford, judge of the Ninth Judicial District, for the purpose of inquiring into the legality of their being restrained in their liberty. On a hearing of the charge, and the evidence in support of and against it, the district judge admitted Stearnes to bail, but refused bail to these appellants and remanded them back to jail. From the judgment and order of Judge Ford, refusing bail and remanding them to jail, an appeal-was prosecuted ' to the Austin branch of this court, and a transcript of the proceedings had before the district judge was filed in this court at Austin, on May 23, 1879. On May 31, 1879, counsel for the appellants filed their motion in writing, in which the court was asked to dismiss their appeal and allow the withdrawal of the record of the case from the files; which motion was granted by the court, and the appeal ordered to be dismissed, at the costs of the appellants. The date of the order of dismissal is May 31, 1879.

The case now before the court is another appeal from the same judgment and order of Judge Ford, and the proceedings had before him on hearing of the habeas corpus, as was involved in the appeal returnable to the Austin branch of this court, and dismissed by order of the appellants, as above set out.

The assistant attorney-general now moves the court to dismiss the present appeal, and, among other grounds, for the reason that the parties have already had the benefit of one appeal, and that they are not by law entitled to another. To this ground of the motion on the part of the State the appellants respond, in effect, that although it is not denied that an appeal was taken to this court heretofore, that appeal was dismissed at the instance and at the cost of the appellants, and that there has been no hearing of the case on its merits; and that the appellants ought not to be precluded from a hearing on the merits of this, notwithstanding the dismissal of the former appeal on their own motion. The question here presented is as to the effect of dismissing the former appeal.

It is conceded that there is no authority accessible to counsel or court which is deóisive of the question. - It is argued on behalf of the appellants that the right of appeal stands on as high grounds as the right to the writ in the first instance, and that there is no limitation fixed by the Habeas Corpus Act within which an appeal must be presented, and that, by the analogies of the law, the present appeal should be entertained.

We are not prepared to yield to the argument so forcibly presented by counsel. We do not question the great importance of this ancient writ of right to the citizen, and are not disposed to withhold from it its full scope and legitimate operation in inquiring into the cause of restraint of one who makes a prima facie case of being illegally restrained in his liberty; but we must be permitted to say that in the present case, agreeably to the record before us, these appellants have had the benefit of an inquiry into the cause and manner of their restraint, and competent legal authority has determined that they are not illegally restrained. It will hardly be seriously contended that the writ of habeas corpus can be invoked for the purpose of setting at large, with or without bail, those who are legally restrained in their liberty. So we are of opinion that this court does not on appeal open the investigation anew; on- the contrary, the appeal in a habeas corpus case is required to be heard and determined upon the law and the facts arising upon the record. Code Cr. Proc., art. 884. From these and. other expressions in the Code we conclude that the right of appeal does not stand on the same foundation as does the writ originally, and that by analogy to the law in all other cases, both civil and criminal, there must necessarily be some point of time after which an appeal would not lie.

Again: the right of appeal is not thrust on any person; he may avail himself of it in a proper case, or decline to do. so, at his option; and so we are of opinion that after the party has availed himself of the legal right of appeal he may also prosecute it to a hearing, or abandon or dismiss it, at his own election. But we are further of opinion that there is no authority of law for the prosecution of more than one appeal from the same judgment. If any such authority exists, we are not aware of it. It is now the practice, even in felonies, to permit an appellant to abandon and dismiss his appeal if he so desires.

The motion of the assistant attorney-general must prevail ; and because these appellants have heretofore had the benefit of an appeal, which they have abandoned by procuring its dismissal, the present appeal must also be dismissed for want of authority of law to prosecute it.

Appeal dismissed.