On September 19, 1910, one of the Judges of this court granted a writ of habeas corpus to the relator, M.L. Looper, commanding the sheriff having him in custody to appear before this court on the first Monday in October, and show cause why he detained the said M.L. Looper. The showing on the return is that he holds him by virtue of an order issued by the District Judge of Johnson County for contempt for violating an injunction that theretofore issued restraining and enjoining the relator from selling intoxicating liquors in any place in Johnson County, Texas, and from the establishing, maintaining or conducting any place in said county wherein intoxicating liquors are kept and sold in violation of law. All the questions raised in this case have been decided by this court adversely to relator's contention in the case of Ex parte Roper, 61 Tex.Crim. Rep., this day decided, and therefore it will be unnecessary to say anything further on the different questions raised.
However, there is one question in this case that is not in the Roper case that is, perhaps, necessary to pass upon. It is contended, and the proof shows, that the relator had been tried and convicted in the County Court of Johnson County for unlawfully selling whisky in violation of the local option law, and the contention is made here that by reason of his conviction in the criminal case he should be discharged, and he pleads that judgment of conviction in bar of the punishment awarded by the court for contempt, and says that he should be released by reason thereof, because he can not be put in jeopardy twice for the same offense. This contention is not correct, and is not now an open question in this State. Practically the identical point raised here was decided adversely to relator's contention in the case of Ex parte Allison, 99 Tex. 455. The opinion in that case was rendered by *Page 131 Chief Justice Gaines, and discussing the proposition that the Legislature has no power to confer upon the courts the authority to enjoin the commission of crime or the establishment or continuance of a public nuisance, Judge Gaines says:
"Nor do we think that the Act in question infringes that provision of the Bill of Rights which declares that `no person, for the same offense, shall be twice put in jeopardy of life or liberty.' It is true that if he commits the act which he is enjoined from committing, and such act be a violation of the penal laws of the State, he may under this statute be punished for the contempt, and also for the violation of the criminal law. But these are not `the same offense.' In the former case he is punished for a violation of the orders of the court, and in the latter for an offense `against the peace and dignity of the State.' One who makes an assault in the presence of the court, in such a manner as to constitute a contempt of court, is punishable, not only for the contempt, but also for the assault. . . .
"It is also urged in argument, in a somewhat indefinite way, that the enjoining of crimes or public nuisances was unknown to the common law, and that therefore the Legislature was without power to provide for such injunction. This involves the question whether the procedure provided for in the act is `due course of the law of the land.' This question has been answered by the Supreme Court of the United States in the case of Mugler v. Kansas, 123 U.S. 623. There the court say: `Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law.' . . .
"The whole of title 3 of our Code of Criminal Procedure is devoted to the means for the prevention of crime, and provides very much of the same remedies as were allowed at common law. Such being the facts, we fail to see that there is any peculiarity about the writ of injunction, or any peculiar sanctity about criminal or quasi criminal acts, which debar the Legislature from providing that one may be enjoined by a suit in equity from establishing a public nuisance — such as a gambling house."
On the authority of the Supreme Court in that case we hold that the fact that relator had been convicted for unlawfully selling whisky in violation of the local option law and which he was enjoined from doing, can not when arraigned before the court for contempt, successfully plead, in bar of the contempt proceedings, the fact that he had been convicted for committing that crime that he was enjoined from doing.
We therefore hold that relator is not entitled to his discharge, and he is therefore remanded to the sheriff of Johnson County.
Relator remanded to custody.
Davidson, Presiding Judge, dissents, and thinks applicant ought to be discharged. *Page 132
ON REHEARING. February 8, 1911.