
    Ex parte GARNER.
    (No. 7503.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.)
    1. Jury @==>22(1) — Statutes, giving justice of peace power to commit to custody on failure to give bond to keep the peace, not invalid.
    Code Cr. Proc. 1911, arts. 120, 124, and 125, providing that a justice of the peace may require one who threatens the life of another to give bond to keep the peace or commit him to custody, is not invalid ae> opposed to the constitutional right that trial by jury shall remain inviolate (Const, art. 1, § 15).
    2. Jury ⅞=>10 — Provision as to trial by jury relates to right at adoption of Constitution.
    The provision of the Constitution that the right of trial by jury shall remain inviolate (article 1, § 15.) relates to the right of trial by jury when the Constitution was adopted.
    3. Habeas corpus @=>85(1) — Evidence held to retain prisoner not sufficient.
    Under Code Cr. Proc. 1911, art. 12G, providing that one who threatens the life of another may be required to give bond or be committed to custody, article 125, giving a magistrate power after inquiry to order such person to give bond to keep the peace, and article 130, providing that on failure to ' give bond such a person shall be committed for one year, where a commitment which contained no reference to the inquiry and judgment provided for by article 125 directed a prisoner to be kept in custody for making threats until he gave bond, evidence in habeas corpus proceedings by such prisoner for release, consisting of an affidavit that the prisoner made threats, a warrant for his arrest, its return, and the commitment, was, not sufficient to lawfully detain the prisoner, since it did not show the inquiry and judgment required by article 125.
    4.Habeas corpus @=>lll(l) — Invalid commit. ment for failure to give bond to keep peace heid not to justify discharge of prisoner.
    Under Code Or. Proc. 1911, art. 205, providing that in habeas corpus proceedings, if the applicant is held under a commitment or warrant that is informal or void, yet if from' the document on which the warrant was issued or at the hearing it appears that there was probable cause to hold the prisoner, he-shall not be discharged, and article 206, forbidding the discharge of a prisoner where there is reason to, believe' there is probable cause for his detention, and article 207, giving the court hearing habeas corpus proceedings power to> summon as a witness the magistrate who issued the warrant for the prisoner’s arrest, where a commitment for failure to give bond to keep the peace was invalid for failure to state that the prisoner had a hearing, and an order was made, as. required by article 125, and for directing him to be kept in custody until bond was given, instead of for one year, as required by article 130, the prisoner will not be discharged from custody on habeas corpus proceedings.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Application by Sie Garner for a writ of habeas corpus to be released from restraint. From a denial of the writ, relator appeals.
    Reversed and remanded.
    Oliver ,W. Johnson, of San Antonio, for appellant
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The relator sought in the district court to be released by way of writ of habeas corpus from restraint under a commitment issued by a justice of the peace in these words:

“You are hereby commanded, that you take in custody and commit to the jail of your county, Sie Garner, charged with making threats, on which charge he has this day by me been committed, and him safely keep unless he gives good and sufficient peace bond in the sum of two hundred ($200.00) dollars.”

The statutory authority of magistrates upon the subject of requiring security to keep the peace is found in title 3, Code of Crim. Proc. Article 120 of that Code declares that one who threatens to take the life of another may be brought before a magistrate, and may be compelled to give security to keep the peace or committed into custody in default thereof. Article 124 provides that upon the filing of the affidavit charging the threat, a warrant may be issued bringing the accused before the magistrate. In article 125 the following language is found:

“When the person accused has been brought before the magistrate, he shall hear proof as to the accusation, and, if he be satisfied that there is just reason to apprehend that the offense was intended to be committed, or that the threat was seriously made, he shall make an order that the accused enter into bond in such sum as he may in his discretion require, conditioned that he will not commit such offense, and that he will keep the peace toward the person threatened or about to be injured, and toward all others for one year from the date of such bond.”

Article 132 of the Code declares that—

“If the magistrate be of opinion from the evidence that there is no good reason to apprehend that the offense was intended or will be committed, or that no serious threat was made by the defendant, he shall discharge the person so accused.”

The relator insists that his demand for a jury, having been denied, his detention offends against the constitutional provision requiring that the right of trial by jury “shall remain inviolate.” Article 1, § 15. It is clear that in enacting the statute, article 125, supra, the Legislature intended to confer upon the magistrate, the power to make the decision. The language of the statute will bear no other interpretation. Relator contends, however, that the statute is void because it denies him the right of trial by jury. Attention has been directed to only one case in this state upon the subject, namely, Ex parte Muckenfuss, 52 Tex. Or. R. 467, 107 S. W. 1131. In that case, while definite opinion upon the subject is reserved, the intimation is given that the statute is valid. Bond is not required as punishment for the offense, but is intended to prevent the commission of a crime. Proceedings of this character are generally regarded in the nature of criminal proceedings. Corpus Juris, vol. 9, p. 393, § 21, notes 17,18. In some states they are held to be criminal. See Cyc. of Pleading and Practice, vol. 3, p. 680; Davis v. State, 138 Ind. 13, 37 N. E. 397; State v. Oates, 88 N. C. 668; Ford v. State, 96 Miss. 85, 50 South. 497; Arnold v. State, 92 Ind. 187. In South Carolina, there is a provision in the state Constitution expressly conferring upon the magistrate the power to bind one oyer to keep the peace, and the statute in accord therewith is held valid. State v. Garlington, 56 S. C. 413, 34 S. E. 689. Inasmuch as the right of trial by jury is guaranteed by both the federal and state Constitutions, this decision would indicate that the power might legally be conferred upon the magistrate. Moreover, 'we understand that at common law the power to require security to keep the peace and in default thereof to detain the offender was a power exerted by the magistrates without the intervention of a jury. Cyc. of Law & Proc. vol. 5, p. 1032. In this state, it has been held that the provision in the Constitution upon the subject relates to the right of trial by jury at the time the Constitution was adopted. See Ex parte Allison, 99 Tex. 462, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653; Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684; Harris’ Tex. Const, p. 134, note 14.

With the information at our command, wre express the view that the statute in question was not invalid.. It may be, however, that this question is not involved; at least, that it is not necessary that it be decided in order to dispose of the matter at hapd. Prom the statement of facts, it appears that the only evidence introduced were the affidavit, the warrant for the arrest and its return, and the commitment which we have quoted above. Upon this evidence, the relat- ,.or could not be lawfully held, for the reason that it is not shown that the inquiry and judgment described in article 125, supra, had been entered against him; nor can this be inferred from the commitment, for the reason that in the commitment it is directed that he be kept in custody unless he gives a peace bond. The statute does not confer upon the magistrate the jurisdiction to make such an order, but declares that:

“If the defendant fail or refuse to give bond, he shall be committed to the jail of the county, or if there be no jail, to the custody of the sheriff for the period of one year from the date of the first ordef requiring such bond.” Article 130, C. C. P.

The invalid commitment does not necessarily justify the discharge of relator. This because of the expressed statement in article 205, Code of Crim. Procedure.

In view of the complaint and warrant which was issued for the arrest of the relat- or,' it is not deemed proper to order him discharged. In the state in which the record is found, it is regarded as coming within the purview of article 206 of the Code of Crim. Procedure which forbids the discharge of a prisoner where there is reason .to believe that there is probable cause for his detention. See, also, article 207, Code of Crim. Proc.

It is accordingly ordered that the judgment be reversed and the cause remanded for further proceedings in accord with the law and this opinion. 
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