It has been heretoiore determined by this Court, that an appeal will not lie from a judgment of the District Court punishing a witness, by finе and imprisonment, for a contempt, committed in refusing to give evidence before the Grand Jury. (Floyd v. The State, 7 Tex. R. 215.) The case ex parte Kearny, (7 Wheat. R. 38,) was there cited, where it was held by the Supreme Court of the United States, that the punishment оf a witness by imprisonment, for a contempt committed in refusing to answer questions, on the ground that his answers would tend to criminate himself, being a criminal case, was not within the appellate jurisdiction of the Court. And the Court refused to grant a habeas corpus, on the ground of a want of jurisdiction, it appearing that the party had been committed for contempt by a Court оf competent jurisdiction.
Commenting on the case of Crosby, Lord Mayor of London, (3 Wils. 188,) Mr. Justice Story, said, “Itis most mani- “ fest from thе whole reasoning of the Court, in this case, that a “ writ of habeas corpus was not deemed a proper remedy, where “ a party was committed for a contempt, by a court of competent “jurisdiction ; and that, if granted, the Court could not inquirе
These observations, extracted from the Opinion of the Court-in that case, are a sufficient answer to the argument of inconvenience, which has been urged in the present case. And the decision is аn authority in point, against the right to the writ of habeas corpus in this case. There was no occasion to resort to the writ of habeas corрus, before the same Court which had cognizance of the contempt. And if that Court could grant the writ, any other Court or Judge, having authority to grant writs of habeas corpus, could grant it; and thus deprive the-Court of the power which every Court must, of necessity, possess, to be the judge of its own contempts. The decision of any Court, in a case of contempt, would thus becоme subject to revision, not only by an appellate Court, but by every other Court or Judge, having the authority conferred on him by law to.issue the writ of habeas corpus. It must be perfectly clear, therefore, that since an appeal will not lie in cases of contempt, neither will the writ of habeas corpus lie to revise the action
The granting of the writ of habeas corpus is not a matter of cоurse. The Judge, or Court to which the application.is made, must have “ probable cause to believe” that the party applying for the writ, “ is detained in custody without lawful authority.” (Hart. Dig. Art. 1576.) The cause of his detention, if known, must be shown to the Cоurt, upon the application; and unless it is made to appear to the Court, that there is probable cаuse to believe that the imprisonment complained of is without lawful authority, the writ cannot rightfully be granted. In some of the States, (as New York and Pennsylvania,) th writ is grantable, of course, in all cases where the person is in actual confinement, under any color or pretence whatever. (N. Y. Act of 1818, Sec. 41, ch. 277; Penn. Act of Feb. 18th, 1785; 3 Yeates R. 263; 1 Serg. & Rawlе, 356.) And in those States judicial discretion commences when the prisoner is brought before the Judge; and he acts under the sаme responsibility, and none other, than that which belongs to the exercise of ordinary judicial power. But our Statutе evidently contemplates that the Judge shall exercise a proper judicial discretion in awarding the writ. Herе, his discretion commenced with the application for the writ; and the Judge should, therefore refuse it, whenever it аppears that the party will not be entitled to his discharge ; and, consequently, that the awarding of the writ can be of no avail to him, upon its return; as, when he is a convict in executionj or is in confinement upon a legal commitment for an offence, which has already been adjudged by competent authority, upon habeas corpus, not bailable; or when he refuses to givе the requisite bail, in a case which is of right bailable; or when he is detained for a contempt of Court. (Bouv. L. D. tit. “Habeas Corpus”) It follows thаt the writ was improvidently awarded in the present case.
The extent and application of the rule, which exеmpts a wit-mess from giving evidence against himself; or, in other words,
We are of opinion that the writ of habeas corpus was improvidently and erroneously awarded; and that it did not authorize the Court to revise the order of commitment. And as the Court a quo had not jurisdiction to inquire into the sufficiency of the cause of commitment, the appeal cannot confer it upon this Court. The appellant cannot complain of the error in granting the writ; since it was at his instance ; and, as the action of the Court upon the return of the writ, has rendered that error now immaterial, and there is no error in the idgment, which it is material to revise, the appeal will be dismissed.
Appeal dismissed.