In view of the two recent decisions, Ex parte Allison,48 Tex. Crim. 634, in this State holding that the ancillary writ of injunction, equitable only in nature and operation, can be used as original process in the enforcement of the criminal laws and penal statutes for the violation of such laws and statutes, it may be useless for me now to further dissent, but I do so looking to the future for a return to correct principle in regard to the questions involved. When the question for the first time came before this court in Ex parte Allison, 48 Tex.Crim. Rep., I entered my dissent and gave a few reasons for so doing. I thought it was but one of those diversions which occasionally arise in the history of national and judicial life, and would soon pass. But in this I may be wrong, and may have thought far afield of what may ultimately happen. I have thought further, and seriously so, over the matter in the light of the opinion rendered by our Supreme Court, and the one written by Judge Ramsey in this case, as well as the original opinion in48 Tex. Crim. 634, and I am now the more fully convinced that these decisions are not in accord with our law as it should be or as it was intended to be, or as has been understood by our people and the legal profession in the history of our State. I do not believe those opinions are correct, nor do I believe they announce the correct rule in the administration of our criminal law under the questions raised in this case and in those of Ex parte Allison. While for the present any dissent that I may enter will avail nothing, I yet, nevertheless, do this in order that I may not willingly as a judge be committed to the doctrine that criminal laws can be enforced and penal offenses punished under the ancillary equitable writ of injunction, and that such writ can be substituted for indictments and jury trials thereunder. The history of our race and jurisprudence have always provided as the remedy in penal offenses the trial by jury. Our Constitution is based upon the right of trial by jury in criminal cases. Of this trial the accused may not be deprived under any circumstances, especially in felonies; nor can he be deprived of it in a misdemeanor unless he expressly waives it. The Codes, penal and procedure, point to and revolve around the right of trial by jury, and that right is the central thought of our entire system of criminal and constitutional law. The Constitution guards and protects that right in the most emphatic commanding language and with guaranties that can not be *Page 80 legally evaded or set aside either by construction or legislative cobwebby. When our people ordained in the Bill of Rights that "in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury," they meant what they said. They did not mean such trial could or should be held under the writ of injunction. It was not even contemplated by them in the ordaining of that provision in the Constitution that such a contingency could or would arise. The history of our race, its jurisprudence, legislation and constitutions, preclude the idea that an accused person could or should be tried under such writ. The process of punishment by injunction for penal offenses, however ingeniously put, is but an insidious attack upon the constitutional right of trial by jury and upon the form and framework of our government by side-line legislation and decision which must be destructive of jury trials if carried to final results In part now the right to try penal offenses is transferred under injunction process to the judge only without the consent of the accused, and to this extent the jury trial is curtailed and denied. This point having been reached, it may furnish easy facilities upon occasion to destroy the right of trial by jury and regulate the enforcement of criminal laws and punishment thereunder to the writ of injunction, and this to the exclusion of a jury trial and at the hands of the judge only. In that event the constitutional, demanding right of jury trial becomes a relic of past constitutional government. This bulwark of our liberties may be thus set aside and made of non-effect, as was the Mosaic law by the substitution of the tradition of the elders under Jewish history and dispensation. I am not yet persuaded that all statutes are law, or that there is authority of omnipotent power confided to legislative bodies, especially while the Constitution is recognized as a basic principle of government. The history of Texas will show, and the history of our people, I think, will demonstrate that they have been opposed to government by injunction. Our people have struggled against it, denied the right, embraced it in platforms of parties, and yet the Legislature is upheld in such legislation by our courts of last resort. I place this dissent upon record without intending any reflection upon either the esteemed judges or courts who have differed with me, and with a full recognition of their devotion to duty and patriotic love of country.
Without giving further reasons at present, I therefore respectfully enter this my dissent.
ON REHEARING. February 8, 1911.