Ex parte Pattison

ChalmeRS, J. ,■ delivered the opinion of the court. The relator, being under indictment for murder, was denied, bail by Chancellor Berry, before whom he was brought by writ of habeas corpus; thereafter, he was tried in the Circuit Court of Claiborne County, and, the jury having failed to agree, a mistrial was entei’ed, and he was remanded to jail. He thereupon sued out this second writ of habeas corpus, before Judge Chrismau, but upon the hearing it was dismissed, upon the ground that the decisión by the chancellor upon the first writ remaining unreversed and unappealed from, operated as a bar to the new proceeding. At common law, an adverse decision on one writ of habeas corpus did not preclude a second one. Indeed, so tender was the law of the liberty of the subject, that he might, when deprived of it, resort in turn to every judge in the realm, and was entitled to be enlarged if any one of them thought proper [163] to bail or discharge him. Such is still the law in many States of the American Union. 2 Cal. 429 ; 3 Blatchf. 1; 4 Wise, 522: 4 Gill, 301; 5 Ala. 130. Our statute has changed this. Sect. 1413, Code of 1871, declares that “ the judgment rendered on the first trial of any writ of habeas corpus shall be conclusive until reversed, as hereinafter provided, and, whilst so in force, shall be a bar to any other proceedings to bring the same matter again in question, except by appeal,” etc. The object and effect of this is to make the decision on a writ of habeas corpus “ res adjudícala,” and conclusive as to all matters which were, or might properly have been, investigated upon the hearing thereof. We do not think, however, that it will preclude the issuance and maintenance of a second writ, based upon subsequently occurring events. So to construe the statute might work the greatest injustice and hardship, and is not demanded by its language. But the new writ must be based upon facts which have actually occurred since the hearing of the original writ, and not upon a claim of newly discovered testimony as to old facts; for otherwise the prisoner could make out his claim by piecemeal, and thus, by repeated applications upon successive claims of newly discovered testimony, defeat the element of finality and conclusiveness which the statute gives to the proceeding. In the case at bar, the newly occurring facts set forth in the second petition were the mistrial before the petit jury, and the serious impairment of the relator’s health, caused by his imprisonment. The first petition had expressed fears that his health would suffer from confinement, and the second averred that those fears had been realized, and that a longer imprisonment would prove fatal, or at least inflict permanent and irreparable injury. We think these allegations were sufficient to give jurisdiction to entertain the new writ. While neither necessarily entitled the party to bail, either sufficed to give jurisdiction and to demand investigation. [164] The failure of the petit jury to find a verdict is held by some authorities as of itself sufficient to entitle to bail. We do not so regard it, but only as giving jurisdiction for a new hearing, and justifying the introduction of additional testimony, not considered on the first trial. While the former adjudication must be considered as conclusive on the testimony then adduced, the subsequent mistrial before the petit jury, in connection with newly developed exculpatory evidence, may authorize the admission to bail. The mistrial gives the jurisdiction, and justifies the production of the new testimony. Together they may suffice for the enlargement on bond. Bail should not be granted on the ground of bad health, unless it be rendered probable by testimony that confinement has produced, or is likely to produce, fatal or serious results. Slight sickness is not sufficient, since there are few persons who will not be injuriously affected by imprisonment. There must be strong grounds for apprehending a fatal result or permanent impairment of health. The judgment dismissing the writ will be reversed and the cause remanded, with directions that the matter be heard and determined in accordance with the principles here announced. If Judge Chrisman, from any cause, cannot hear it, resort may be had to some other judge or chancellor.