Ex Parte Firmin

on rehearing.

November 23, 1910.

McCORD, Judge.

At -a former day of this term of court the judgment of the lower court was reversed and bail granted the relator, Judge- Ramsey dissenting, and in his dissent holds that the ease should be reversed with directions to the trial court to proceed to hear the evidence in the case. The State has filed a motion for rehearing asking that the majority opinion be set aside and the judgment of the lower court be either affirmed, or, if reversed, be certified below with directions to proceed to hear the testimony. In view of the dissenting opinion by Judge Ramsey, we have thought it best in overruling the motion for rehearing to give our reasons for reversing the judgment and admitting the relator to bail. Judge Ramsey’s opinion proceeds upon the idea that the orders of this court in a habeas corpus proceeding acts upon the District Court below and that the judgment or mandate must be transmitted through the medium of the District Court hearing the writ as in other cases of appeal. This, to our minds, is a mistaken view of the law. The right of appeal in cases of habeas corpus in this State, is dependent upon and regulated solely by statute and when this court acts upon a writ of habeas corpus, whether granted b3r this court originally or whether upon appeal, the mandate is not directed or transmitted to the inferior tribunal, but by the terms of the statute itself it goes to the officer holding the party in custody. Article 924, Code Criminal Procedure, provides: “The judgment of the Court of Criminal Appeals (in habeas corpus eases) shall be certified by the clerk thereof to the officer holding the defendant in custod3r, or when he is held by an3>- person other than an officer, to the sheriff of the proper county.” Article 920 provides: “The Court of Criminal Appeals shall enter such judgment and make such orders as the law and the nature of the case may require, and may make such orders relative to the costs in the case as may seem right, allowing costs and fixing the amount, or allowing no costs at all.” Article 921 provides: “The judgment of the Court of Criminal Appeals in appeals under habeas corpus shall be final and conclusive, and no further application in the same case can be made for the writ, except in oases specially provided for by law.” Article 922 says: “If an officer holding a person in custody fails to obey the mandate of the Court of Criminal Appeals, he is guilty of an offense and punishable according to the provisions of -the penal statutes of this State.” Therefore, when we read these different provisions of the statute with regard to writs of habeas corpus and the trial thereof, in this court and" the directions with regard to whom the mandate shall issue, we are constrained to hold that this court has no power to reverse a habeas corpus on appeal and direct by mandate the lower court to proceed in a certain way to further investigation of the ease. In the case of Ex parte Erwin, 7 Texas Crim. App., 288, this court, speaking through Judge Clark, says: “It was never contemplated that this court would act upon such an appeal when it had no authority to enforce its judgment, nor when the illegal restraint complained of had altogether ceased; nor is this court authorized to remand a case to an inferior judge with directions how to proceed in the enforcement of an original order made by him in chambers, and which may be left by the action of this court in full force and operation.” This court has only such jurisdiction .and powers as is conferred by the Constitution and laws of the State. The statute regulates how cases shall be appealed, how they shall be proceeded with in this court, when and to whom mandates shall issue, and we find nowhere in the statute any provision that authorizes this court in habeas corpus proceedings, whether here on appeal or originally, to issue a mandate to the inferior courts directing them how to proceed or what to do to develop the evidence in the trial of a case, or to direct them as to any mode of procedure, .after the case has. been adjudicated by this court, but it expressly commands this court and the clerk thereof under the directions of this court, to issue the mandate and order of this court to the officer holding the prisoner in custody either to discharge the relator, release him upon bail or to hold him in custody. It provides for the punishment of the officer for failing to obey the mandate of this court. Therefore, the orders of this court in habeas corpus cases can not be directed to the inferior tribunal, and neither can this court order the inferior tribunal to direct the officer holding the party in custody as to what disposition shall be made of the party, but the mandate and order of this court goes directly to the officer. We have searched in vain for any authority in the statute that would authorize this court upon the trial of habeas corpus, on appeal, to reverse the judgment of the trial court and to direct the lower court to proceed in a certain manner, or in any certain way to develop the case in the court below. What power has this court to direct the District Court to hear testimony in a habeas corpus case? The court below has seen fit to hear all the testimony it desires. It passed judgment upon the facts before it. This court says it is not satisfied with the way the case was proceeded with in the court below and says to the district judge, you have not proceeded to try this case in the right way and we now order you to proceed to take evidence in this case. But, says the district judge, in answer to such an order, I refuse to comply with the request of the higher court. Then where is the power of this court to compel the District Court to proceed ? We have no authority to issue a mandamus to compel the district judge to do anything. The Constitution, article 5, section 5, says: “The Court of Criminal Appeals shall have appellant jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law. The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.” It has no power to issue writs of mandamus to district judges to do or not to do any particular thing. See Ex parte Quesada, 34 Texas Crim. Rep., 116; also Darnell v. State, 24 Texas Crim. App., 6. The relator in the court below was indicted for murder; he sued out a writ of habeas corpus before the district judge. The case was set down for hearing, the State offered the indictment and the capias for his arrest and closed its case. Delator offered no testimony. The court denied bail. Section 11, article 1, of the Constitution, provides: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident. . . .” It has been held that an indictment for murder is not of itself proof evident that the party is guilty of a capital offense. Therefore, this being true, the burden is upon the State to establish a case of murder in the first degree and can not be upon the relator. While it was formerly held that the burden was upon the relator, yet it has been the established practice for years that the burden is upon the State to make out a ease and upon the failure of the State so to do, to grant bail. This court can only receive information in a judicial way. The record in this case is our only means of information. How do we know that the State had any proof to offer? It is but speculation on our part to say that the law does not give the State a “gambler’s chance.” The State had its opportunity; its officers in the court helow are supposed to know what the law is and what the rules of procedure are; they are supposed to know what the rules of the law are and where the burden of proof rests in this character of cases, and to direct the district judge to proceed in a certain way, after the case is reversed in a habeas corpus case, to our minds, would be a reflection upon the legal intelligence of both judge and prosecuting officer. We feel that it would be dangerous to depart from the established rules of procedure as prescribed by the statute and before we are asked.so to do, we must demand that we are shown the law that authorizes it. If Judge Bamsey’s dissenting opinion is the law it would be found in our books. If it is not to be found in our books then it is not law. It may be that the relator is guilty of the foulest murder. It may be that the evidence, if developed, would show this fact, yet we have no judicial cognizance of it. The record as it comes before us does not disclose whether the relator is guilty of murder or manslaughter, or of what offense and simply because we feel that the trial court had not proceeded as it ought to have done, would not justify us in departing from the long line of adjudicated cases in this court and establish a precedent, the exercise of which and the enlargement of such a doctrine, would result in doing away with law and the prescribed mode and method of procedure and establishing a rule of making each case a specialty in the courts. This is a power the courts can not afford to take upon themselves. Courts may feel that justice has been thwarted, and feel aggravated because the courts below have not followed the law, and that this proceeding is not authorized by law, and feel like attempting to justify it because it is so obnoxious, as presented, in its mildest and least injurious effect, but it may be said that illegitimate and unconstitutional practices get their first footing in this manner, and by silent approaches and slight deviations from legal modes of procedure. We prefer to stand by the law as it is written and as has been so often declared, we can not accede to a departure in this case because we may personally feel outraged at the action of the court below. It were better that a guilty person should occasionally go free than that this court should attempt to reach out and grasp arbitrary and unauthorized power. We can find no authority that will support the dissenting opinion of Judge Ramsey, and we still adhere to our former opinion that we can not do otherwise than grant bail and direct the mandate to the officer having the relator in custody.

The motion for rehearing will, therefore, be overruled.

Overruled.