State Ex Rel. Looney v. Hamblen

PBEHDEBGAST, Presiding Judge, and HABPEB, Judge. We know judicially, and as a fact, from our own records that F. E. Pye was duly and legally convicted of forgery in the District Court of Brazos County on Septemiier 21, 1911, and that his punishment therefor was assessed at confinement in our State penitentiary for the term of two years. That he duly appealed from said conviction to this court, and remained at liberty pending the final disposition of his appeal, having duly entered into recognizance for that purpose. That his case was decided by this court on June 19, 1912, the judgment and sentence of said District Court was duly affirmed, and thereby said judgment and sentence of said District Court became the judgment of this court. *528 That he thereafter duly filed two motions for rehearing, which prevented said affirmance from becoming final until overruled on March 5, 1913. That at his special instance and request this court withheld its mandate until June 6, 1913, to give him time and opportunity to apply to the Supreme Court of the United States for a writ of error, which he did, and which was afterwards denied by the Supreme Court of the United States. That afterwards on June 6, 1913, the mandate of this court wras duly issued, by which, and the judgment of this court, the said lower court was commanded to observe our said judgment, “and in all things to have it duty recognized, obeyed and executed,” and said mandate must have reached said lower court soon after its issuance. That under no circumstances could said Rye’s time of service in the penitentiary have begun until after June 6, 1913, and that it is impossible for him to have served his term since then. We are satisfied that the penitentiary authorities in the attempted discharge of said Rye before he served his time, and the district judges in their attempt to grant him a writ of habeas corpus and have a hearing thereunder, acted from no improper motive, but from a misapprehension of the law and facts. Upon consideration of the law and facts, it' is ordered by this court, and the judges thereof, as follows: (1) That the petition of Hon. B. -F. Looney, Attorney General of Texas, and his assistants, be duty filed and docketed by the clerk of this court. (2) That this court, and the judges thereof, will not permit any disobedience of, nor interference with, its judgment and mandate, by any official of the State penitentiary, nor by any judge of any court, of this State, nor by any other ¡Derson. (3) That the writ of prohibition as prayed for by the Attorney General be granted and issued at once by the clerk of this court, and that it also direct and require said judges of the lower court to dismiss the habeas corpus proceedings and have no hearing thereunder and make no other order thereabout. (4) That said Rye be at once delivered into the custody of J. V. Cunningham, State Transfer Agent of the State of Texas, or other proper official of the penitentiary. In case he is not so delivered or does not himself at once surrender to said authorities, then that he immediately be taken without capias or other writ, by any peace officer, or citizen of this State, and returned to said penitentiary and required to serve his full time in accordance with the judgment and mandate of this court. We base our authority to make this order on the general principles of law, and: section 4, article 5, of our Constitution; Ex parte Wyatt, 29 Texas Crim. App., 398; Luckey v. State, 14 Texas, 400; Ex parte Branch, 37 Texas Crim. Rep., 318; Ex parte Sherwood, 29 Texas Crim. App., 334; McCorquodale v. State, 54 Texas Crim. Rep., 344; Wells v. Littlefield, 62 Texas, 28; Conley v. Anderson, Judge, 164 S. W. Rep., 985; Hovey v. Shepherd, 105 Texas, 237; State v. Boyce, 65 Pac. Rep., *529 763; State ex rel. v. Drew, Judge, 38 La. Ann., 274; In re State, 18 La. Ann., 102; State ex rel., etc., v. Superior Court, etc., 36 Pac. Rep., 443; State v. Murphy, 53. Am. St. Rep., 491; The People ex rel. v. Court of, etc., 185 N. Y., 504; 23 A. & E. Ency. of Law (2nd ed.), p. 195 et seq., to p. 206.