When the relator applied for the writ of habeas corpus, as appears from the testimony, he was not in jail under the commitment, but had the liberty of the town, under an arrangement with the sheriff of Coleman County. This, I think, was an escape, and the motion of the Assistant Attorney-General ought to have prevailed, and the application should have been dismissed. The writ required the sheriff to confine the relator in the jail of Coleman County in default of the payment of the fine of $50 assessed against him for contempt. This he never did, but permitted him to go at large. Under the authorities this was an escape. See 11 Am. and Eng. Enc. of Law, p. 265, subdiv. 3; Owens v. State, 32 Tex.Crim. Rep.. True, as observed in the opinion, the writ of habeas corpus applies to every character of restraint. Still it occurs to me that, where a prisoner seeks to be discharged by the writ under a judgment and commitment of the court, he must show an actual commitment in accordance with the order. If he is merely at large, although under some species of constraint, I do not believe the writ will lie. The mandate of this court operates directly upon the officer holding the prisoner. Ex parte Erwin, 7 Texas Crim. App., 288. In this case there was no officer holding the relator, and in order to have confined the relator under the original commitment, I believe the officer would have had to obtain a new writ. He certainly would have been compelled to rearrest the relator under the former writ.
As to whether or not the court had the power to treat as contempt the conduct of the relator as set out in the judgment, I need only refer to my views expressed in the dissent in Ex parte Duncan, 42 Texas Criminal Reports, 661, 2 Texas Court Reporter, 402. The alleged contempt here was in the face of the court, and there is no question but that the court had jurisdiction of the person of the relator at the time. Did it have the power to treat the particular conduct of the relator on the occasion as a contempt of court? I believe the language attributed to relator in the judgment was tantamount to telling the witness Beakley that he had lied. Of course he did not intend to apply this language to his own witness, and when he told the jury that Crawford (his own witness) or Beakley (who testified against him) — one or the other — was mistaken or had lied, it was meant for Beakley. When Beakley protested, relator turned toward him in an excited voice and manner, and, pointing and waiving his hand toward said Beakley, repeated the accusation, and, in addition, *Page 367 stated that he had nothing to take back. All this transpired in the presence of the court, and the judge based his action on his own personal knowledge, not only as to the language used, but as to the manner of the relator. The judicial eye witnessed the act, the judicial mind comprehended all the circumstances of aggravation, provocation, or mitigation, and I do not believe his judgment can be attacked by affidavits; nor does it require extraneous support in order to render it effective. That such language is calculated to provoke a breach of the peace, I have no doubt. At the same time, I would not be understood as curtailing the right of all legitimate debate. An attorney has at all times the right, and he should be untrammeled, to criticise the testimony of witnesses against him; but, if he would be severe, he must be parliamentary at the same time. I do not believe that it accords with the proprieties of the court room to apply to a witness the epithet of liar or scoundrel, especially if, under the circumstances, this language is calculated to, and actually does, provoke a breach of the peace. But, however that may be, the court below had jurisdiction of the subject matter of the contempt, and if the conduct of the relator as set out in the judgment could, under the circumstances, constitute a contempt of court, I do not believe it is competent for this tribunal to try the case de novo, and set aside the judgment on evidence contradicting the record.