The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1903-01-29
rHE FnSrER cAsE.

ed soon
THE FOSTER CASE
In the haheas corpus case Of N. p. Eos
ter. from Harris county, the court aeH''
cred the following opinion:
THIS is an original proceeding on hubeas
corpus to enlarge the rclntor from q com
mitment Of the district Judge a. the crlml.
nal district court ot Harris county; ON IN
sneged contempt for publishing me e1i
dence in the trial IN said court nf y. y.
Williams et al charged with murder
the State by her asNstnnt ATTORNEY geu-
ernl has hled p motion 10 diemisS rms case
on the ground that rolntor, when he Hu'n
out the writ e haroas corpus. and thc'N
after since that time was not ~ me lee9l
custody or restraint ~ the sheriff Of Harris
county and evidence has been adduoed be
fore rs upon that Issue Tho testimony IN
efrect shows that relaior was allowed ny
the sheriff tho liberty 81 tho city ~ Uous
ton and IN one ocrnsion " seems ne lett
said city for n short time Wiihuut leave
If the sheriff. but returned "a the cut
Tho rentor testified that he was told Ivy
the sheriff ~ consider himself under arrest,
and that his movements must he under the
control az said sheriff that the sheriu was
aware NJ bis purpose to sue ont me VIII
Of haheas corpus and exercised toward him
liberty in enabling him n sue ont the VIII
without cophning him actually In lai.
That the understanding was that no was IN
tho custody ~ the sheriff md unless he
should he released hy tho writ ~ hAhens
corpus he was amonAhle to that cnstndN,
understand the testimony this comes clearly
within the rule laid down in Es parte Snod
grass, TcI. CT Rep. 5Ss. \ minority Or
the court I'm that ease, after quoting certain
articles 81 our code. used this language
I'VE deem it unnecessary "a enter INTO a
long discussion on those authorities, hut
suffice " 10 say that any character or KIND
Of restraint that prrcludcg an absolute md
perfect freedom of action on the part or
the relator, authorizes such relator IN make
application Ia this court for rplenSe from
seid restraint Tho motion Of the state
Is accordingly ovcrrued and We hold thar
rplntor was entitled 10 the writ
Relator has shown that no order " record
vas made I'm said case ~ state Of Texas
vs. Williams OF al prohibiting the puhltcn
ton of the evidences I'm said case; but thnt
the judge merely IN open court notihcd and
ordered relator that the court would hold
him In contempt ~ the court II said news
paper NJ which he was the publisher.
should publish said testimony In said case
before o verdict was had " was further
shown that no affidavit was made hy any
one charging relntor with q violation or
said verbal order; but N Information mud
Of the courtS own motion he entered n
Judgment nisl against relator ~ for con
tempt. assessing his punishment Mt : ape
county tail Notice was then Issued re-
quirlng him 10 come before said court and
show why said Judgment should not be
made final II Is urged by relator that THIS
procedure was Irregular and void. That,
IN the first place, conceding tho court had
jurisdiction. an order should have hccn
publication Of said evidence, that " same
was violated by the rclntor, then nm AMI
dnvit should have been made the contempt
being n constructive one against him, ana
mn attachment issued requiring him to show
why he should no, he adiudged guilty ~ con.
tempt for violation Of said order and
that 81 was not competent for the court or
its own motion and without AFFIDAVIT 20
have In the nrSt Instance adiudged him
guilty Of contempt. and then attached him
to chow cause why the soid Judgment
should not he made tnsl and that such
procedure on tho part of the court was "
ierai md void We are Inclined Ia agree
with this contention Ency, NJ Plead mud
Prac., vol 4. y. 7IS, nnd authorities there
cited
However,, more important question Is
raised, and we do not sce at To rest this
decision upon the illcgality Of the procedure
which was adopted Relator insists land
an this he 10 horne out by the record that
IN the publication which occurred In the
Houston Chronicle, 81 which he was the
editor and publisher, there was nothing ~
character rejecting on the Judge or the
coHrt but merely published true state
xnent Of the testimonv adduced from the
witnesses in the case; and he says he was
authorized TO, dc this notwithstanding the
was given In the course Of n public trial
IN q court Of jnstice and tho constitution
guarantees public trial, and also guaran
tees the freedom of the press We have
given this subject that careful examination
commensurate with it's Importance. mind
full that on the one hand the dignity and
authority Of the courts must he maintained
while on the other free speech. free press
and the liberty OF the citizen must he pre-
served. Both are equally valuable rights
n the court is shorn of us power 10 pun
ish for contempts IN al proper eases. II
can not preserve Its authority, so that
without any constitutional or statutory
guarantee. this power IA inherent In the