Ex Parte Firmin , 60 Tex. Crim. 368 ( 1910 )

This case and cause No. 908 against the same relator are practically identical. The record shows that after suing out a writ of habeas corpus, which was filed and granted on 18th day of October of this year, that on the same or next day the cause came on to be heard before the court when there was introduced by the State the indictment returned against relator, the warrant of arrest issued thereon, and the sheriff's return showing the due execution of such process, and that no other or further testimony was offered and admitted. On this showing the majority of the court holds, as a matter of law, that the relator is entitled to bail, and the court has in each case fixed the bail in the sum of Four Thousand Dollars. I agree that the judgment refusing bail was erroneous, and that such judgment ought to be reversed, and, as I believe, the cause should be remanded in order that the matter may be heard on its merits and to the end that justice may be done. For many years prior to the decision in the case of Ex parte Newman, 38 Tex. Crim. 164, it had been held in this State that after an indictment is found, that the burden of proof rested upon the applicant to show the facts entitling him to bail. This had been the uniform holding of this court almost from the day of its organization until the rendition of the Newman opinion. Judge Willson, whose accuracy can most generally be relied upon, says, after referring to the Scoggin's case (6 Texas Crim. App., 546), in Ex parte Smith, 23 Texas Crim. App., 100: "This rule was reaffirmed in Randon's case (12 Texas Crim. App., 145), and has not been overruled, or even questioned, in any subsequent decision of this or any other court, that we are aware of; but on the contrary, stands approved by every authority, without a single exception that we have examined. (Church on Hab. Corp., sec. 404; Ex parte Vaughan, 44 Ala. 417; Ex parte Strange, 59 Cal. 416; Ex parte Springer, 1 Utah 214; Hefren's case, 27 Ind. 87; Rhear's case,67 Ala. 94; Jones' case, 55 Ind. 176; Kendall's case,100 Ind. 599; Street's case, 43 Miss. 1; Bridewell's case, 57 Miss. 39; 1 Bishop Crim. Prac., sec. 262; Lynch's case, 38 Ill. 494; Hurd on Hab. Corp., 438-446; Cooley's Const. Lim., 380; Tinder's case,19 Cal. 539; Mill's case, 2 Dev., N.C., 421; Hight's case, 1 Morris, Iowa, 407; Holley's case, 15 Fla. 688.)"

Judge Hurt dissented in that case and wrote an opinion of remarkable strength and vigor. Indeed, both the opinions of Judge Willson and Judge Hurt in that case are among the strongest of our courts. So far as I am concerned, I have not deemed it necessary to come to any definite conclusion as to which is the true rule in respect to where the burden of proof lies. While, of course, it is desirable that this question, as all other legal questions, should be settled right, it is, I think, more important that there should be a uniform rule adopted and followed by the court, because in any event it is a mere question of procedure, and amounts to no more than compelling the appellant or the State, in accordance with the rule adopted, to go forward in the production of testimony. The matter that concerns me most, and I think that would concern the profession most, in respect to such a rule of procedure is not so much the best rule, but rather that we should in any event follow the rule sanctioned by the last expression of the court and with which the profession in general is familiar, and to which, in their practice, they have accommodated themselves. With this idea in what I shall say in this opinion I shall accept the decision in the Newman case as the law, and would, under any circumstances, in view of the fact that it remains now the settled law of the State, be disposed to follow and uphold it. But I am not to be driven to what I conceive to be the absurdity of saying that by force of this rule I am to decide any case blindfolded. Our law provides that after an indictment is found on examining trial or on habeas corpus a defendant can not be discharged, but provides in substance that bail in some amount must be required. This proceeds upon the conclusive presumption that in view of the indictment there must be some evidence worthy of investigation and worthy to be heard by a jury. In this case it is evident that counsel for the State as well as the court had overlooked the decision in the Newman case, 38 Tex. Crim. 164, supra, and were proceeding in accordance with the precedent in the Smith case, supra, and other cases referred to therein.

The provisions of our Code of Criminal Procedure touching bail are as follows:

"Art. 919: The appeal in a habeas corpus case shall be heard and determined upon the law and the facts arising upon the record, and no incidental question which may have arisen on the hearing of the application before the court below shall be revised. The only design of the appeal is to do substantial justice to the party appealing.

"Art. 920: The Court of Criminal Appeals shall enter such judgment and make such orders as the law and 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.

"Art. 921: 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 cases specially provided for by law."

It is my judgment that by the provisions of article 920 that the Court of Criminal Appeals shall enter such judgment and make such orders as the law and the nature of the case requires, contemplated, as a matter of course, that the article has reference to a record that furnishes us some data by which an intelligent decision could be rendered. The writ of habeas corpus is a writ of right. The whole policy of the law is to expedite the hearing of such applications, and it was the intent and purpose of the statute manifestly that where an application for a writ of habeas corpus had been made in the trial court, and the facts developed, and bail refused, on appeal where this court should hold the bail was improperly refused, that being in possession of the facts we should make such orders in respect to bail as the court below should have made. But it was never intended to force upon this tribunal, the court of last resort in matters of criminal appeal, the inexorable necessity of deciding without knowing the facts and without knowing the rights of the relator, and, in view of the fact that two applications were pending, the practical certainty that at least one of our decisions may or will be wrong. Nor is the decision of this court in the Newman case, supra, authority for the action of the court here. In that case a witness had been introduced. This witness was the prosecutor and the alleged injured person. This witness failed to identify the relator as one of the parties engaged in the robbery. In this state of the record, holding that the burden was on the State, and being confronted with the evidence of the witness claimed to have been wronged, of his inability to identify relator, the court as I believe wisely concluded that bail should be granted and they were at least in some fair position to indicate and fix the amount of bail. The decision of the court in the case of Ex parte Arthur, 47 S.W. Rep., 365, is more nearly in point and may fairly be said, in a measure to sustain the conclusion of the court in this case. It should be noticed, however, in that case that proof was made by relator touching his ability to give bond. It should be remembered also that in that case the charge was one with a graded penalty, running as low as five years in the penitentiary or one that might be fixed at death. That opinion ought, however, in my judgment, never to have been rendered, and we ought now to hasten to overrule it. I have believed all my life that there is no more responsible place in our form of government than a position on a court of last resort in matters affecting the peace of society and the life and liberty of a citizen. I have felt and thought that a judge clothed with this great authority ought to devote himself to his task and duty with as much singleness of purpose as any priest or prophet ever devoted his life to the service of God or man. But I have thought that this devotion should and did involve the exercise of judgment and should proceed with reference to the facts of a given case and the law to be applied to it. I have never believed and do not now believe that I am called on to undertake to decide any question absolutely blindfolded and without even a gambler's chance of being right on all matters I decide. We do not know, in the state of this record, whether these two cases related to the same transaction. Who knows from this record whether in truth the homicides may not have occurred at different times and different places? Who can say, that in both of them, he ought to be granted bail at all, and who can say that if bail is to be granted that it should be granted in both cases in the same amount? It may be in one case that we should err in granting bail at all. It may be in the other that we have fixed the bail at such an excessive sum, as to amount, practically, to a denial of the right of bail at all. No, it was never contemplated, in my judgment, by the article of our statute above quoted that we should, in the condition of the record here presented, do more than reverse the judgment of the court below and remand the cause with directions to hear the proof and decide the case in a due and orderly manner. This decision does the relator no harm, and yet protects the interest of the State. It can not be said it will greatly delay the matter, because as the record shows the application was sued out on one day and that the court below acted on the same or the next day and within less time than the State in this case would have to file a motion for rehearing, another application could be made, the matter heard, submitted to this court and determined on its merits, but with all possible respect to my brethren it seems to me that if the opinion is to stand, the court is put in the attitude of deciding without a hearing, because the whole record shows that there has been no hearing.

These reasons, in brief, and many others could be given for inducing me to file this dissent and enter this protest against a decision that I believe to be both unwise and unwarranted by law.

ON REHEARING. November 23, 1910.