On a former day of this term applicant was released from custody for reasons stated in the original opinion. The State has filed a motion for rehearing, alleging various grounds why the original opinion discharging applicant was erroneous. Applicant files a replication or answer thereto and also moves to dismiss the motion for rehearing for want of authority in this court to entertain it, for the following reasons:
1. By all respectable authority, proceedings in habeas corpus to enlarge one unlawfully restrained of his liberty is considered as a criminal proceeding, and the action to be a criminal case. 2. Under the Constitution and laws of Texas the State has no right of appeal in criminal cases. 3. That the State of Texas in criminal cases has no right to ask for a new trial. 4. That the relator has already been discharged and found not guilty, and is no longer in custody, by order of the final judgment of this court discharging him, and that his bondsmen thereby have been discharged and no longer liable upon said bonds, and if this court were to grant the rehearing, it would be necessary to issue warrant of arrest and to enter a new decree commanding the arrest of applicant and imprisonment independent of the judgment of the House of Representatives.
This motion should be sustained upon all of the propositions asserted. There has been a great deal written by courts with reference to what it takes to constitute a civil and criminal contempt and drawing the distinction between the two. Whatever the nice line of distinction may be or how closely they have been drawn, there is absolutely no question of the fact or of the law of this case, that this is one of criminal contempt. There are no elements of the civil contempt connected with or growing out of it. The rule may be fairly stated from 7 vol. Am. Eng. Ency. of Law, page 28: "Generally, it may be said that a criminal contempt embraces all acts committed *Page 308 against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority." Numerous instances are given and authorities cited to support this proposition; among others, Savin, Petitioner, 131 U.S. 267; Cuddy, Petitioner, 131 U.S. 280; In re Brule, 71 Fed. Rep., 943. It has been further held that proceedings in contempt are of two classes: First, those instituted solely for the purpose of vindicating the dignity of the court. These are criminal. Second, those instituted by private individuals for the purpose of investigating and enforcing their rights. These are civil. The authorities on this proposition are so numerous and so clear we deem it unnecessary to cite them. From any viewpoint of this case which can be taken, it is a criminal contempt, and, therefore, in a sense a criminal case. The statute expressly authorizes courts to punish by fine and imprisonment. The Constitution expressly authorizes jail imprisonment for contempt at hands of Legislature. All these matters are based on the proposition that they violate the dignity and majesty of the law and sovereign power of the State. It is not necessary to bring forward penal provisions of the Constitution in the Penal Code to constitute them criminal. That instrument is superior to the Penal Code. In the somewhat noted case of Gompers v. Bucks Stove and Range Company, 221 U.S. Rep., 417, 55 Law ed., p. 797, at p. 807, reviewing a great number of authorities, Mr. Justice Lamar, rendering the opinion of the court, said:
"If, then, as the Court of Appeals correctly held, the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt. The question as to the character of such proceedings has generally been raised, in the Appellate Court, to determine whether the case could be reviewed by writ of error or on appeal. Bessette v. W.B. Conkey Co., 194 U.S. 324, 48 L. ed., 997, 24 Sup.Ct. Rep., 665. But it may involve much more than mere matters of practice. For, notwithstanding the many elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and can not be compelled to testify against himself. Boyd v. United States,116 U.S. 616, 29 L. ed., 746, 6 Sup.Ct. Rep., 524; United States v. Jose, 63 Fed., 951; State v. Davis, 50 W. Va. 100, 40 S.E. 331, 14 Am. Crim. Rep., 282; King v. Ohio M.R. Co., 7 Biss., 529, Fed. Cas. No. 7,800; Sabin v. Fogarty, 70 Fed., 482; Drakeford v. Adams, 98 Ga. 722, 25 S.E. 833.
"There is another important difference. Proceedings for civil contempt are between the original parties, and are instituted and tried as a part of the main cause. But, on the other hand, proceedings *Page 309 at law for criminal contempt are between the public and the defendant, and are not a part of the original cause."
This is the latest expression of the Supreme Court of the United States that has been called to our attention with reference to what it takes to constitute a criminal contempt, and the necessary proceedings where the case is one of criminal and not civil contempt. See also as sustaining the Gompers case, supra, 92 U.S. 542 and 550.
To the same effect, so far as distinction between civil and criminal contempt is concerned, is the celebrated case of In re Debs, 158 U.S. 564. The Debs case was supposed to practically reach the limit so far as authority of the courts is concerned with reference to imposition of contempts for matters stated in that opinion. Whatever else may be said of the Debs case, it is clear that it drew a distinction between civil and criminal contempts, and that wherever it is in conflict with the latter opinion of the Supreme Court of the United States, it would be regarded as overruled. Whether there is a difference or not, I do not propose here to discuss, but all the authorities, so far as we are aware, maintain a distinction between civil and criminal contempts, and, that wherever the case is one of criminal contempt, it is treated as a criminal case or action. That is so under all the authorities in Texas, in the history of the Supreme Court and the Court of Criminal Appeals. Then the case will be treated as a criminal case and not civil.
It is settled by the Constitution and the statutes of Texas that in a criminal case the State can not move for a new trial. There is a statutory provision that a new trial can not be granted the State. Article 777, Code of Criminal Procedure, reads as follows: "In all cases of acquittal, the defendant shall be immediately discharged from all further liability upon the charge for which he has been tried, and judgment upon the verdict accordingly shall be at once rendered and entered." Article 836, Code of Criminal Procedure, thus provides: "A new trial can in no case be granted where the verdict or judgment has been rendered for the defendant." These articles are cited from the Revised Criminal Statutes as prepared by the codifiers and adopted by the last Legislature. The authorities in this State are rather numerous upon this question, a few of which will be cited: Perry v. State, 14 Texas Crim. App., 166; Robertson v. State, 14 Texas Crim. App., 211; Holt v. State, 20 Texas Crim. App., 271; Jeter v. State, 86 Tex. 555; Gay et al. v. State,20 Tex. 504; Aber v. Warden, 49 Tex. 377 [49 Tex. 377]; Cassaday v. State, 4 Texas Crim. App., 96; Ward v. State, 9 Texas Crim. App., 462. It will be noted that these cases are scire facias proceedings. Both this and the Supreme Court held that these were criminal cases in which the State would be relegated to the Constitution and laws with reference to motions for new trials and right of appeal. A criminal contempt is certainly as clearly a criminal case as is a sci fa on a forfeited *Page 310 bond. It is not the purpose of this opinion to enter into a discussion of those matters. They have been so frequently decided that it is unnecessary to notice them further.
It is also thoroughly settled in this State that the State or the public, as contradistinguished from the citizenship, has no right of appeal in criminal cases. Article 5, section 26, of the Constitution, thus declares: "The State shall have no right of appeal in criminal cases." A criminal contempt is a criminal case as already distinguished, and, therefore, under no view of this question could the State have right of appeal. It will be noted that this is an original proceeding in this court and not an appeal. Had a trial court, either district or county, granted a writ of habeas corpus and discharged the applicant on the theory that he was not guilty of the contempt, the State would not have the right of appeal or the right to ask for a new trial. Had an appeal been prosecuted from a judgment discharging the applicant, under such circumstances, this court would promptly dismiss the appeal because of the provisions of the Constitution as set forth above, article 5, section 26. This court would also have held, if it decided the law correctly, that in the trial court the State would not have the legal right to ask for a new trial. In other words, being a criminal case, or a criminal action, the verdict of not guilty, whether at the hands of the court or the jury, discharged the prisoner absolutely and put the State beyond where it could ask for a new trial or take an appeal. As before stated, this is an original application before this court, and upon final disposition of the hearing of the case this court solemnly entered its decree discharging the prisoner from custody, thereby finding him not guilty of the contempt charged or sought to be enforced against him. Had this court in other character of original proceedings discharged the prisoner on the theory that he was not guilty of the matters charged against him, there would be no question of the soundness of the proposition that he should not be again arrested, and the State could not ask for a new trial. Under the authorities, this being a criminal case, the same rule will apply.
We might go further and cite the different sections of the Code of Criminal Procedure with reference to the matters of bail where parties are held under charges. In such cases where this court or the trial court has discharged under writ of habeas corpus, the State can not move for new trial, nor can the party be arrested again until after indictment is found. These, while somewhat analogous, are only cited to show that this principle is maintained throughout the criminal law and procedure so far as the right of the State is concerned to appeal or ask for a new trial. My brethren make of this case a civil suit tried before the House of Representatives, and this court on habeas corpus. This would be fatal to our jurisdiction. This court's jurisdiction is entirely of criminal matters and cases. Ex parte Reed, 34 Tex.Crim. Rep.; Ex parte Berry, 34 Tex. Crim. 36;
*Page 311 Legate v. Legate, 87 Tex. 248, 38 Tex.Crim. Rep.,40 Tex. Crim. 84.
Being of the opinion that the law is clearly with the motion to dismiss the rehearing, it ought to be sustained, and the motion for rehearing or new trial dismissed. Inasmuch however as my brother Harper holds the court has authority to hear State's motion for rehearing, I agree with him fully that said motion for rehearing should be overruled.
Overruled.