33 S.W.2d 435 | Tex. Crim. App. | 1930
Upon a hearing on a writ of habeas corpus before the district court of Galveston County, relator was remanded to the custody of the sheriff. Hence this appeal. *124
Relator is under indictment charging him with robbery with firearms, a capital offense. The indictment against him was returned into court with numerous other indictments charging ordinary felonies against various persons. As the indictments were handed to the judge of the district court he was advised by the county attorney, upon having made inquiry of him, that all of the indictments charged ordinary felonies. It being the custom of the judge to set the bond in cases of ordinary felony at five hundred dollars, he indorsed on each of the indictments such sum as the amount to be required as bail. Among the indictments upon which this indorsement appeared was that charging relator with the offense of robbery with firearms. Thereafter, during the same term of court at which the indictment was returned, the sheriff released relator on a bond in the sum of five hundred dollars. The matter having been brought to the attention of the trial judge, the order fixing bond was vacated and an alias capias issued upon which relator was arrested and incarcerated in jail. The vacating order was entered at the same term of court at which the indictment had been returned, and during that term relator sought to be released, upon a hearing on a writ of habeas corpus, under the bond he had theretofore executed in the sum of five hundred dollars. The testimony adduced upon the hearing was uncontroverted to the effect that relator entered the home of Mrs. Carrie Moeller, exhibited a pistol, bound and gagged her, struck her on the head with the pistol and robbed her of two thousand dollars.
It is relator's contention that the trial court was without authority to vacate the order granting bail, notwithstanding the fact that he acted upon a mistake of fact at the time bail was granted. He relies upon the holding in the cases of Jenkins v. State, 45 Tex.Crim. Rep.,
Looking to other jurisdictions, it is observed that the Supreme Court of Oklahoma, in the case of State ex rel. Starritt v. Newman,
It is unquestionably the rule in civil cases that it is "within the power of the court at the same term, to revise or vacate any of its judgments, decrees, or orders." Gulf C. and S. F. Ry. Co. v. Muse, District Judge,
It is obvious that the power of the court in the respect mentioned in criminal cases is not as broad as in civil cases. However, it is unnecessary at this time to discuss the limitatons upon such power.
The cases relied upon by relator are distinguishable upon the facts from the case at bar. As reflected by the record in such cases, no mistake *126 entered into the order granting bail. It was granted upon a proper and legal order duly entered after legal investigation and proper exercise of discretion upon the part of the judge. In the present case, being misinformed by the prosecuting attorney as to the nature of the offense, the court granted bail in a capital case, in the absence of an agreement on the part of the State that the case was bailable, and without an exmination upon a writ of habeas corpus, or otherwise. In short, the record shows that there was no exercise of judicial discretion. The question decided in the cases relied upon by relator was not related to the power of the court to correct a mistake in granting bail in a capital case during the term of court at which the order was entered, but concerned the power to increase bail or deny bail after a proper order had been duly and legally entered fixing the amount of bond, or granting bail.
Without approving the doctrine announced by the Supreme Court of Missouri, in the case of The State v. Everymann, 172 Mo., 294,
Under our Constitution, bail is a matter of right, except in capital offenses when the proof is evident. Section 11 of Art. 1, Constitution of Texas. in determining whether a capital offense is bailable, the practice ordinarily pursued in this state is to hear the evidence upon a writ of habeas corpus. Upon a hearing the burden is upon the State to show that the accused is not entitled to bail. Otherwise he is entitled to bail as a matter of right. Ex parte Powell,
In prohibiting the re-arrest of one granted bail after indictment, the statute provides that in "cases where, after indictment is found the cause of the defendant has been investigated on habeas corpus, and an order made, either remanding him to custody, or admitting him to bail, he *127 shall neither be subject to be again placed in cunstody, unless when surrendered by his bail, nor shall he be again entitled to the writ of habeas corpus, except in the special cases mentioned in this chapter." Article 169, C. C. P. We mention this for the purpose of showing that it is the policy of the law that bail be not granted in capital cases until the facts have been properly investigated. Intention to hold that a proper agreement approved by the judge authorized to grant bail is invalid is disclaimed. Nothing in the statute referred to can properly be construed to prevent the re-arrest of one indicted for a capital offense under the facts manifested by this record. On the contrary, the statute might be susceptible of the construction that it is only in cases where bond has been granted after investigation on habeas corpus that the accused is exempt from being again placed in custody for the same offense.
We quote from Corpus Juris, vol. 6, page 952, as follows: "Upon admission to bail the accused is regarded as in the custody of his bail from the moment a bond or recognizance is executed until he is discharged or recommitted; but he is also in the custody of the law, and it does not deprive the court of its inherent power to deal with the person of the prisoner."
The purpose of a bail bond is not only to effectuate the release from custody of a person accused of crime, but "to secure his presence in order that he may be tried upon the charge against him." Tex. Jur., Vol. 5, page 802. We think the court had the inherent power to deal with the person of relator in the manner manifested by the record. In Ex parte Calloway, 98 Tex.Crim. Rep.,
To deprive the court of the authority to correct a mistake of the nature in question during the term at which it was made would render it powerless to perform its constitutional and statutory functions. An inherent power would be destroyed. The administration of justice would be hampered, if not entirely defeated. We are constrained to hold that the action of the trial court should be sustained.
We have decided this case on its merits without reference to the statute (article 260, C. C. P.) under which the cases relied upon by appellant seem to have been decided. The soundness of such decisions is seriously questioned.
The judgment is affirmed.
Affirmed. *128
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.