delivered the opinion of the court.
*469 At thе September term, 1916, of the District Court of Van Zandt County, relator R. J. Moreau was charged by indictment with the murder of H. F. Goodnight and of Mrs. H. F. Goodnight. Thereafter, at the April term, 1917, of said District Court, he was put on trial аnd was convicted of the murder of H. F. Goodnight, and punishment at life imprisonment in the state penitentiary was assessed against him. He is now in the state pententiary.
The case against him for the murder of Mrs. H. F. Goodnight has never been tried, and is still on the docket of said District Court.
Relator alleges that by both оral and written motions he has requested and moved the judge of said District Court, the Honorable Joel R. Bond, to set down for trial the case against him for the murder of 'Mrs. Goodnight, but that said respondent has repeatedly and continuously refused to do so, and now refuses to do so, in violation of his rights as guаranteed under the Bill of Rights, Article 1, Section 10, of the Constitution of the State. He prays for a writ of mаndamus to require said judge to give him “a speedy public trial”, as he is entitled to under the Bill of Rights.
In the answеr -filed for respondent only one reason or defense why said mandamus should not issue is pleadеd, to-wit: that by reason of the judgment and sentence in the case of the State of Texas v. Moreau for the murder of H. F. Goodnight, relator is now confined in tjie state penitentiary, and by virtue of said judgmеnt and sentence he “is wholly without and beyond the jurisdiction of the District Court of Van Zandt County, Texas, or thе judge thereof, to try him for another offense” * * *; that “there is no process known to the laws of the State of Texas to require or compel the prison authorities to release a рrisoner in their charge to stand trial in another cause” * ® *; and relator “being incarcerated in the state penitentiary by virtue of a judgment and sentence of a District Court, the Legislature has рrovided no means available to a District Court to release him therefrom, except by the most gracious writ of habeas corpus.” As stated, this is the only defense offered, and it is wholly without merit.
The District Court of Van Zandt Cоunty is a court of general jurisdiction within the confines of the State of Texas. It will be presumed that thе officers of the state penitentiary will obey a bench warrant issued by said court, or such othеr legal summons as may be issued by said court, regarding the person of relator. If they should fail to do sо, which will not be presumed, upon proper application adequate remedy may bе had.
In resisting relator’s motion for “a speedy public trial” on the charge against him for the murder оf Mrs. H. F. Goodnight, the State’s attorneys pleaded that at the conclusion of the trial of Moreau *470 for the murder of H. F. Goodnight, and at the time he was sentenced to life imprisonment in the state penitentiary, Moreau and his attorneys in open court entered into an agreement with the State’s attorneys that Moreau would accept the judgment and sentence in that cause, and nоt appeal therefrom, and in consideration thereof the State would not put to trial the case agaihst him for the murder of Mrs. Goodnight, but said ease should remain on the docket of the сourt pending the service of the sentence in said, other case, and that a notation was entered on the docket of said court to that effect. However, in the order denying and оverruling relator’s motion for' a trial on the charge of the murder of^Mrs. H. F. Goodnight, respondent, the Hоnorable Joel R. Bond, held and found that the agreement as above set out was void, without any сonsideration, and against public policy; but held that ‘1 as defendant is now confined in the state penitentiary, it is within,the discretion of the court as to whether a bench warrant shall be issued causing dеfendant to be removed from his present sentence to stand trial in another cause, when, at most, if convicted, he would receive no greater sentence in this cause than he is now sеrving. ’ ’
Those rights, fundamental in their nature, which have been guaranteed by the Bill of Rights cannot be the subjeсt of judicial discretion. Judicial discretion is a legal discretion and not a personal discrеtion; a legal discretion to be exercised in conformity to the Constitution and the laws of the lаnd. It is only in the absence of positive law or fixed rule that the judge may decide by his view of expediency or of the demands of justice or equity. The Bill of Rights, Section 10 of Article I of the Constitution, provides: “In all criminal prosecutions the accused shall have a speedy public trial by an imрartial jury” * * *.
None of the reasons suggested, either in the order overruling relator’s motion for trial or in the answer to the petition for mandamus here, are good- or have any foundation in law оr justice. Certainly, under our Constitution and our laws, the relator is entitled to a trial on the charge against him.
The writ will issue as prayed for.