concurring.
I concur in the opinion just read, and on the main issue involved say that Section 2534 of the Code declares that “ the judgment rendered on the trial of any writ of habeas corpus shall be conclusive until reversed, and while so in force shall be a bar to another habeas corpus in the same cause, or to any other proceedings to bring the same matter again in question, •except by appeal or by action for false imprisonment; nor shall *144any person so discharged be afterwards confined for the same cause, except by a court of competent jurisdiction.”
The effect of this statute is to make the judgment on a writ of habeas corpus a bar against another writ based on facts which were, or might properly have been, investigated on the trial in which the judgment was rendered. Ex parte Nichols, 62 Miss. 158 ; Ex parte Bridewell, 51 id. 177; Ex parte Pattison, 56 id. 161. All matters of fact which existed, and which were or might have been litigated on such trial, would be concluded by the judgment; but matters of fact, arising after the rendition of the judgment, such as unusual and oppressive delay in the prosecution, or serious injury to the prisoner’s health likely to prove fatal on account of confinement, might be investigated on another writ; for they were not and could not have been examined on the first writ, and to investigate them on another writ would not be the trial of the same cause, or the bringing of the same matter in question again. New evidence as to old facts, or facts which existed at the time of the trial on the first writ, would not be sufficient to avoid the bar of the judgment on the first writ, or to authorize the issuance of another writ in the same cause. The utmost extent to which the jurisdiction of another writ could be carried would be to consider the case of the ■applicant as made by facts which have actually happened since the trial on the first writ. This must be the general rule; but if the extreme cases suggested in the argument of counsel should ever occur, such as indisputable proof discovered after judgment, denying bail on habeas corpus, of the party alleged to have been killed by the prisoner being alive, I apprehend that this court or any court would consider them so exceptional as to avoid the bar of the judgment denying bail, and warrant the issuance of another writ and a new investigation.
I .do not understand the language emplojed in ex parte Pattison, 56 Miss. 161, in reference to the effect under the statute of a mistrial on the rights of a prisoner as to habeas corpus, to mean more than that a mistrial by a petit jury, after judgments denying bail would be one fact, which in connection witli others occurring after the judgment, would be sufficient to entitle the prisoner to a second writ and another investigation *145on such new facts; but such new investigation would not, and could not, bring into consideration, or rehearing facts heard or existing when the judgment was rendered. If more was intended to be said, it seems to me incorrect and misleading. A judgment or habeas corpus operates for and against the prisoner, only to the extent and in the manner allowed b3 the statute. If it is in his favor and he is discharged, with or without bail, he may be re-arrested or imprisoned for the same cause, when indicted therefor, or by a court of competent jurisdiction, for the statute provides that this may be done. If it is against him and he is denied bail, appeal is his only remedy, for the statute gives no other to bring the same matter in question again. It is impossible, under the statute, to give a judgment on habeas corpus such reciprocal operation for and against the prisoner that if he is denied bail before indictment and is afterwards indicted, he may then annul the judgment against him by another examination of the question of his guilt or innocence, upon a new writ. Without regard to the statute, the fact of the indictment being found in such instances would not change the legal aspects of the case in his favor, but rather against him.
At common law an adverse judgment on habeas corpus was no bar to another writ; and a subject deprived of his liberty might resort m turn to every judge of the realm, and be discharged or bailed by either one of them who thought proper to do so; notwithstanding each of the other judges may have decided to the contrary. This was the evil sought to be remedied by Section 2534 of the Code. The statute is a positive restriction on the rights of a prisoner in regard to habeas corpus, as they existed at common law. It makes the judgment rendered on the trial of an3 writ of habeas corpus conclusive ; and a bar to another writ in the same cause, to bring the same matter in question again, how long? The statute answers until reversed on appeal. Another provision of the Code changes the common law again, by making judgments on habeas corpus reviewable by appeal, and confers the right, without restriction except as to the State, of appeal to the supreme court, on any party aggrieved by such judgments. To permit the bar of a judgment on habeas corpus to be escaped by newly discovered *146evidence generally, or such as would be sufficient for a new trial at law, or for a bill of review in chancery, would nullify the statute and foster the very evils it was intended to remedy.
The last clause of Section 2534 of the Code applies exclusively to the case where a person has been discharged on habeas ^corpus, and forbids that he shall be again arrested or confined for the same cause, until he is indicted or proceeded against therefor by a court of competent jurisdiction. When this clause of the statute is put in operation by the action of the State, and a person who has been discharged on habeas corpus, with or without bail, is afterwards indicted and rearrested and confined for the same offence, it is a just and necessary construction of the statute that he should not be denied another writ, and a new investigation on the merits, without reference to whether the facts on either side are new or old. He could not be barred by the former judgment, superseded by the action of the State in his rearrest and confinement, for that judgment was in his favor, and could not be pleaded in bar against him. The right to another writ in such cases was recognized and not disputed in ex parte Bridewell, 57 Miss., 177.
In case at bar, the judgment denying appellants bail ■on their first proceeding by habeas corpus is a bar against them until reversed by appeal, except upon facts which have occurred since that judgment was rendered, and his Honor, the Chief Justice, did not err in refusing to hear testimony given on the first trial, or which was in existence at that time, and I am unable to say that the newly occurring facts in evidence before him were sufficient to justify or require the relief prayed for.
I vote to affirm the judgment, because I do not find in the record sufficient proof of facts arising subsequently to the judgment on the first writ to avoid the bar of that judgment.