
    (85 Tex. Cr. R. 304)
    Ex parte SPANELL.
    (No. 5397.)
    (Court of Criminal Appeals of Texas.
    May 14, 1919.)
    Habeas Corpus <®=»3 — Other Remedy.
    Where relator, after being acquitted of one charge of murder, was indicted on another, he cannot by habeas corpus raise the issue of au-trefois acquit; the appropriate remedy being by special plea entered in the court in which the second indictment was pending.
    Original application by H. J. Spanell for writ of habeas corpus to obtain his discharge from the custody of the sheriff, by whom he was held under a capias issued in a case wherein relator was charged with murder.
    Writ dismissed, and relator remanded.
    See, also, 203 S. W. 357.
    Anderson & Upton, of San Angelo, L. A. Dale, ,of El Paso, Williams & Williams, of Waco, and Critz & Woodward, of Coleman, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case relator, Harry J. Spanell, in an original application for habeas corpus, seeks to be discharged from the custody of the sheriff of Coleman county, Tex., by whom he is held\ under a capias issued in a case pending in the district court of said county wherein relator is charged with the murder of M. C. Butler. The ground for the relief sought is that relator has heretofore been placed in jeopardy and acquitted of the murder of Crystal Span-ell, it being alleged in the application that the act, volition, and transaction for which he has so been in jeopardy and acquitted was one and the isame as that now charged against him, and that the evidence in support of said charge was, and will be, the same as that upon which he was formerly tried, and that, unless he be discharged under this writ, he will again be placed on trial and in jeopardy, in violation of his legal and constitutional rights.

It is objected by the state in limine that a writ of habeas corpus will not lie in such case, and that any action in the premises on our part would be a trespass upon the jurisdiction of a court of existing and competent jurisdiction, to wit, the district court of Coleman county. This question is by no means a new one, either in this or the other states of the Union.

In the Pitner Case, 44 Tex. 578, same being a case in which the only issue was the right to a discharge on habeas corpus, upon a plea of former acquittal, 'Chief Justice Roberts upheld the action of the lower court in refusing such relief, and says:

“That habeas corpus is not the proper remedy in such a case has been decided substantially by this court in accordance, it is believed, with well-established authority.”

This case is cited with approval in the Brill Case, 1 Tex. App. 152, in which similar relief was sought and denied, Judge Winkler holding in that opinion:

“Agreeable to the case made by the record, habeas corpus is not the remedy for the wrong complained of. Perry v. State, 41 Texas, 488. The writ of habeas corpus is not the proper remedy to try the issue of autrefois acquit; the appropriate remedy is by special plea entered in the court in which the indictment is pending under which the party is held. Pitner v. State.”

In Ex parte Rogers, 10 Tex. App. 655, the Pitner Case is again approved, and Presiding Judge White there says:

“While we do not feel called upon to decide whether or not the same rule applies to a plea of former jeopardy, we feel authorized in saying that the pleas have many characteristics in common, and much of the same reasoning is applicable and strong in support of both.”

In the Griffin Case, 5 Tex. App. 457, in an opinion by Judge White, it is held:

“The writ of habeas corpus is not designed to effect an appeal or operate as a writ of error or certiorari; and the court, on habeas corpus, will not, for the purpose of discharging the applicant, consider the sufficiency of facts relied on as evidencing a former acquittal for the same offense for which he is in custody.”

In Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, the present presiding judge of this court, in a case in which the only question was that presented here, sustained the same position in an opinion, the gist of which is tersely expressed in the syllabus as follows:

“The writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy.”

This rule of the courts is in consonance with sound reason and is adhered to by the courts of most of the states of the Union whose opinions are before us. State v. Sheriff, 24 Minn. 87; Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272; Ex parte Hartman, 44 Cal. 32; Steiner v. Nerton, 6 Wash. 23, 32 Pac. 1063; In re Allison, 13 Colo. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224; In re Mahany, 29 Colo. 442, 68 Pac. 235; In re Terrill, 58 Kan. 815, 49 Pac. 158; State v. Crim. Sheriff, 45 La. Ann. 316, 12 South. 307; Ex parte Barnett, 51 Ark. 215, 10 S. W. 492; State v. Sistrunk, 138 Ala. 68, 35 South. 39; Commonwealth ex rel. Norton v. Deacon, 8 Serg. & R. (Pa.) 72; Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. 542, 28 L. Ed. 1005; Ex parte Johnson, 1 Okl. Cr. 286, 97 Pac. 1023, 129 Am. St. Rep. 860; In re Belt, 159 U. S. 95, 15 Sup. Ct. 987, 40 L. Ed. 88; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406; Ex parte Ruthven, 17 Mo. 541.

To the same effect appears to be the law as written in the text-books and enclycope-dias. 21 Cyc. 305 ; 9 Encyc. P. & P.. 632; Church on Habeas Corpus (2d Ed.) § 253; 1 Bishop’s New Crim. Proc. § 821.

There is but one authority in this state known to us which seems to hold contrary to the doctrine of the above citations, same being the Ex parte Davis Case, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775. A careful examination and analysis of this case convinces the writer of this opinion that in the conclusions reached the said opinion is not sound either in holding that the admitted case showed one in which the relator was entitled to have his plea of autrefois acquit sustained, or that this court had power or authority to so decide in said case and to discharge.

A plea of former acquittal, or conviction, or jeopardy is one of fact as well as law, and the only proper place to have the same originally presented and determined is in a trial •court upon a plea duly presented and supported. This is an appellate court, and not a trial court, and will not take cognizance of questions of law or fact determinable in some court of competent jurisdiction in which a cause involving such question may be pending. The writ of habeas corpus was ■never intended to interrupt the due and orderly administration of the criminal law. The reason is very ■ easily apparent. How ■could this court know, except the evidence be introduced before it, that the issues of fact .and law arising on a future hearing will be identical with those already determined? Could the identity of such facts be admitted in advance? It is impossible; and, even, if possible, a decision in .such case would become a moot question in which this court would in no event attempt to take jurisdiction or render a binding judgment. We further observe that the law of this case was announced in this majority opinion on the former appeal, and should be in all things followed by the trial court without speculation as to what may be done at any future time, and without regard to any change in the complexion of this court.

Eor the reason stated, the writ is dismissed, and the relator is remanded. 
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