
    STATE ex rel. MOREAU v. BOND, District Judge.
    (No. 4350.)
    (Supreme Court of Texas.
    April 15, 1925.)
    1. Criminal law <©=>576 (2) — Denial of speedy trial unwarranted: merely because accused is at time confined in penitentiary under sentence for previous offense.
    That one charged with murder by reason of prior conviction for like offense is confined in state penitentiary does not warrant court in denying him a speedy public trial guaranteed by Const, art. 1, § 10, on grounds that he is beyond jurisdiction of court,' and that no process is provided to compel prison authorities to release him to stand trial'in another cause.
    2. Criminal law <@=>576(1) — Fundamental rights guaranteed by Constitution cannot be subject to judicial discretion.
    Fundamental rights guaranteed by Constitution, such as right to speedy trial, cannot be subject to judicial discretion.
    «gssFor other ca»es see same topic and KEY-NUMtíER in all Key-Numbered Digests and Indexes
    . Petition by E. J. Moreau for a writ of mandamus to be directed to-Hon.-Joel E. Bond, Judge of the Eighty-Sixth Judicial District.
    Writ granted.
    E. M. Lively, of Canton, for relator.
    Jas. M. Shields, Co. Atty., of Canton, and Judge Joel E. Bond, of Terrell, for defendant.
   EIEESON, J.

At the September term, 1916, of the district court of Van Zandt county relator E. J. Moreau was charged by indictment with the murder of H. F. Goodnight ana of Mrs. H. F. Goodnight. Thereafter, at the April term, 1917, of said district court, he was put on trial and'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 penitentiary. The case against him fpr the murder of Mrs. H. F. Goodnight has never been tried, and is still on the docket of said district court.

Eelator alleges that by both oral and written motions he has requested and moved the judge of said district court, the honorable Joel E. 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 guaranteed under the Bill of Eights (article 1, § 10, of the Constitution of the state). He prays for a writ of mandamus to require said judge to give him “a speedy public trial,” as he is entitled to under the Bill of Eights.

In the answer filed for respondent only one reason or defense why said mandamus should not issue is pleaded, 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 the state penitentiary, and by virtue of said judgment and sentence he “is wholly without and beyond the jurisdiction of the district court of Van Zandt" county, Tex., or the 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 prisoner in their charge to stand trial in another cause * * * ”; ánd, relator “being incarcerated in the state penitentiary by virtue of a judgment and sentence of a district court, the Legislature has provided 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 county is a court of general jurisdiction within the confines of the state of Texas, It will be presumed that the officers of the state penitentiary will obey a bench warrant issued by said court, or such other legal summons as may be issued by said court, regarding the pe?son of relator. If they should fail to do so, which will not be presumed, upon proper application adequate remedy may be had.

In resisting relator’s motion for “a speedy public trial” on the charge against him for the murder of Mrs. H. F. Goodnight, the state’s attorneys pleaded that at the conclusion of the trial of Moreau 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 not appeal therefrom, and in consideration, thereof the state would not put to trial the case against him for the murder of Mrs. Goodnight, but said case should remain on the docket of the court 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 overruling relator’s motion for a trial on the charge pf the murder of Mrs. H. F. Goodnight, respondent, the honorable Joel E. Bond, held and found that the agreement as above set out was void, without any consideration, and against public policy; but held that, “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 defendant 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 serving.”’

Those -rights, fundamental in their nature, which have been guaranteed by the Bill of Eights cannot be the subject of judicial discretion. Judicial discretion is a. legal discretion and not a personal discretion — a legal discretion to be' exercised in conformity to the- Constitution and tbe laws of the land. It is only in the absence of positive law or fiied rule that the judge may decide by his view of expediency or of the demands of justice or equity. The Bill of Rights (sec. 10 of article 1 of the Constitution) provides:

“In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury. * * * ”

None of the reasons suggested, either in the order overruling relator’s motion for trial or in the answer to tl¡te petition for man-damns here, are good or have any foundation in law or 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.  