The relator being held in custody by the sheriff of Muskogee county to answer an indictment pending and undetermined in the district court of said county for the crime of murder, a writ ofhabeas corpus is prayed for by relator, not that he may be discharged on bail but it is claimed by him that he is entitled to an absolute and unconditional discharge from custody.
In the case of Perry v. State, 41 Tex. 489, the court says:
"The right to discharge is based upon the fact of appellant having previously been convicted in said court on another indictment for theft of a steer, found at the same term of the court as the indictments under which he is now held in custody. All of said indictments, it is insisted, having been found on the same evidence, and on account of the same transaction, are therefore claimed to be for one and the same supposed offense. An application for habeas corpus for the purpose and under the circumstances for which this was made is certainly novel and without precedent in the courts of this state. It would seem to have long since been much too well established by the common law as well as our statutes that an indictment not void upon its face, regularly returned to and pending in a court having jurisdiction thereof, could only be disposed of by some appropriate proceeding *Page 144 in such court for an experiment such as the present. The practice at common law in the court of King's Bench is thus stated in Wilmont's Opinion, 106 (Hurd on Habeas Corpus, 331): `In imprisonment for criminal offenses the court can act upon it only in one of three manners: (1) If it appear clearly that the fact for which the party is committed is no crime, or that it is a crime, but he is committed for it by a person who has no jurisdiction, the court discharges. (2) If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction, or if it appears to be a crime, but a bailable one, the court bails him. (3) If an offense, not bailable, and committed by a competent jurisdiction, the court remands or commits him. It is certainly essential to the proper discharge of its duties, and the due and sufficient administration of the law that whenever a court assumed to act in a matter, and over parties within its jurisdiction, it is its right and duty to proceed to its final determination without interference from any other tribunal.' The writ of habeas corpus was not granted to operate as a writ of error or certiorari, and does not have their force and effect. It does not deal with error or irregularities which render proceedings voidable, merely, but such only as render them absolutely void."
In the case of Ex parte Crofford, 39 Tex.Crim. 548,47 S.W. 533, the court says:
"Relator was placed upon trial before a jury in the district court of Montague county on the charge of murder. The jury retired to consider their verdict on the 10th of August. On the morning of the 12th, in the absence of the defendant, the jury was brought into court and discharged from further consideration of the case. It is shown by the judgment of the court that the court adjudicated the question as to the probability of their agreeing to a verdict. The defendant was not present, and not consulted in regard to the discharge of the jury. In fact he was in jail at the time. He resorted to the writ of habeas corpus for the purpose of seeking his discharge on the ground that he had been placed in jeopardy and could not be tried again; and this is the only ground alleged by the relator, and upon the hearing of the writ remanded relator to custody, and this appeal is prosecuted therefrom. This is not a novel case in Texas. Since the case of Perry v. State, 41 Tex. 488, the decisions have been uniform that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy. See, also, *Page 145 Darrah v. Westerlage, 44 Tex. 388; Ex parte Scwartz, 2 Tex. App. 74[2 Tex.Crim. 74]; Griffin v. State, 5 Tex. App. 457[5 Tex.Crim. 457]."
In this case, the relator being held by virtue of an indictment pending in a court of competent jurisdiction, and over parties within its jurisdiction, it is certainly its right and duty to proceed to its final determination without interference from any other tribunal. In the case of the United States v.Armour Co. (D.C.) 142 F. 818, Humphrey, district judge, says: "* * * That the officer or agent of the corporation, if the facts bring him within the purview of the law, may plead such immunity." In the case of Hale v. Hinkle, 201 U.S. 68, 26 Sup. Ct. 376, 50 L.Ed. 663, the Supreme Court of the United States says: "The suggestion that a person who has testified compulsorily before a grand jury may not be able, if subsequently indicted for some matter concerning which he testified, to procure the evidence necessary to maintain his plea, is more fanciful than real." Where shall the party charged with a crime by indictment plead such immunity? Certainly not in another court in a proceeding for writ of habeas corpus, but in the court where the indictment is pending, just like any other plea in abatement or bar may be made and entertained.
Writ of habeas corpus denied.
All the Justices concur.