Ex parte Erwin

Clark, J. The right of appeal in cases of habeas corpus, in this State, is dependent upon and regulated solely by statute ; and it is clearly contemplated by the law, which has received the sanction of repeated adjudications from this and other courts exercising supreme appellate power in such cases, that the orders of this court shall act directly upon the officers or other persons having the custody of the applicant, and not be transmitted through the medium of inferior tribunals, as in other cases of appeal. Our Code of Criminal Procedure, among other provisions regulating such appeals, provides that the judgment which — 293 — may be rendered by this court shall be certified by the clerk to the officer holding the defendant in custody, or, when he is held by any person other than an officer, to the sheriff of the proper county. Code Cr. Proc., art. 889. It further provides that if an officer holding a person in custody fails to obey the mandate of this court, he shall be deemed guilty of an offence; and if the applicant be detained by some person other than an officer, the sheriff, upon receipt of the mandate, shall cause his discharge. Code Cr. Proc., arts. 887, 888. If the applicant is ordered to give bail, the judgment of this court is certified to the officer holding him in custody, for his observance. Code Cr. Proc., art. 890. From these provisions it appears unquestionable that the law contemplates, when this court is called upon to pronounce its judgment on an appeal in a habeas corpus proceeding, that the appellant must be in the custody of some officer or other person subject to its jurisdiction, and upon whom the process of the court can operate with directness. It was never contemplated that this court would act upon such an appeal ivhen 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. If, pending an appeal, the restraint is removed, and the applicant has regained his liberty, no matter by what method, the proceedings here must terminate, and this court will not inquire into the legality of a detention which no longer exists. Such is the uniform practice. Ex parte Peyton, 2 Texas Ct. App. 296 ; Ex parte Cohn and Hawes, 2 Texas Ct. App. 380; Dirks v. The State, 33 Texas, 227. It is true that in Ex parte Coupland, 26 Texas, 387, the Supreme Court retained jurisdiction of a similar appeal, — 294 — notwithstanding it was made to appear that the applicant was, possibly not in custody. But it is to be remarked that the showing to that effect was of a vague and indefinite character, and the court treated the question of dismissal of appeals after the escape of the appellant as one of practice simply, which rested in the sound discretion of the court. A different rule obtains now, and it must be regarded as jurisdictional. CodeCr. Proc., art. 845. Besides, the questions involved in that appeal were of a grave national character, affecting the great struggle in which we were then engaged, and demanding prompt adjudication by the authorities as a measure of public defence. It was the first case in which these questions had been brought to the attention of the court, and it could well say, as it did, that the public interest would be better subserved by hearing the appeal than by its continuance. No exigency of a similar character surrounds this case, and in the selection of a proper precedent we prefer to follow the later decisions of this court, based as they are upon the clear import of the statutes. The applicant in this case applied to the Hon. Spencer Ford, judge of the Fourth Judicial District of this State, on the fourth day of July, 1879, for a writ of habeas corpus directed to Dennis Corwin, sheriff of Travis County, it being alleged that he was illegally restrained in his liberty by said Corwin, by virtue of a warrant from the governor of this State based upon a requisition of the governor of Illinois. The writ was made returnable before the district judge at Bryan on the seventeenth day of July, 1879 ; and after further postponement the matter was heard and determined on July 28th, and the applicant was remanded to the custody of the sheriff of Travis County to be delivered by him to the agent of the State of Illinois, to be transported to‘ that State for trial. To this order the applicant excepted, and gave notice of appeal to this court; and thereupon, by a continuation of the same entry, the judge further ordered that the applicant be not remanded to the custody of the — 295 — sheriff of Travis County, but to the custody of the sheriff of Brazos County, there to remain until this court should render its judgment on appeal. And it was further ordered, in the same judgment-entry, that the relator be admitted to bail upon sufficient sureties in the sum of $1,000, conditioned as the law directs. A bond in that sum was executed on August 1, 1879, by appellant, with thirteen sureties, conditioned for the appearance of appellant before this court at the city of Austin, on the eighth day of April, 1880, there to abide such judgment as might be rendered. Whether an appeal is permissible in this character of cases it is not necessary now to discuss, but we know of no provision of law which authorizes an applicant to prosecute appeal in the mode here attempted. Certainly if an appeal by a party arrested on a warrant of extradition is within the purview of the statute, the law makes no such exception in his favor as to authorize him to go at large pending the action of this court, and in a situation to defy its mandate and to treat its judgment with contempt. The analogies of the law cannot be appealed to in aid of the action of the judge below, for no such analogies- exist. The charge against the applicant appears from the record to be a felony, and not a misdemeanor; and if a resort to analogy was permissible, and the judge was authorized to consider his order remanding the applicant as in the nature of a conviction, to follow a just analogy he should have been committed pending his appeal. Nor can that provision in our Bill of Rights which provides that “ all prisoners shall be bailable by sufficient sureties” be invoked to successfully sustain the action, because, as said by our Supreme Court,- by the terms “all prisoners” it was not meant to require all prisoners under all circumstances to be bailed, but it must refer to a class of prisoners, each and all of whom shall be bailed except as therein provided. Ex parte Ezell, 40 Texas, 451. This provision in our organic law must be — 296 — construed with and be controlled by that provision in the Constitution of the United States, which is the supreme law of the land, and which provides that “ a person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled; be delivered up, to be removed to the State having jurisdiction of the crime.” Const. U. S., art. 4, sect. 2. If upon arrest under a warrant of extradition bail is allowable, the Federal Constitution is set at naught, and delivery in the State having jurisdiction of the offence would have its price, regulated generally by the amount of the bail-bond, where one could be given at all, and a fundamental provision which was intended to apply to all classes of citizens would be restricted to the poor and unfortunate who were not able to furnish bail. Such cannot be the proper construction of the two constitutions. A new provision in our Code of Criminal Procedure authorizes a prisoner to be bailed from day to day pending a hearing on habeas corpus, in the discretion of the judge presiding at such hearing; but after a disposal of the case by him, this discretion no longer exists. Code Cr. Proc., art. 162. This appeal is properly returnable to our Austin term, but, in the view we entertain of its nullity, it could sub-serve no useful purpose to continue it over for that length of time. The laws of the United States and of this State have already been delayed sufficiently in their execution by the applicant, who has failed to properly submit himself to their operation, but who seeks a judgment, standing sufficiently afar to evade its operation if it be adverse, and suf-. ficiently near to avail himself of its protection if it be favorable. Standing outside the jurisdiction of this court, he cannot invoke its protection, nor can this court indulge any presumption in aid of one who is called upon to face his accusers under all the forms and sanctions of the law in a speedy public trial before an impartial jury, but who seeks — 297 — assiduously to evade the issue and to avoid that jurisdiction which is alone competent to pronounce upon his guilt or innocence. It is ordered by the court that this appeal be dismissed for want of jurisdiction ; and it is further ordered that the clerk of this' court transmit without delay to Dennis Cor-win, sheriff of Travis County, a certified copy of the judgment of dismissal, for the information and guidance of that officer. Ordered accordingly.