Full opinion text
HARPER, J. Relator was called as a witness before the grand jury of Floyd county, Tex., when said body was examining witnesses in regard to the killing of J. M. Mun-cy. The relator is a boy 12 years of age, and is the son of J. M. Muncy, deceased, and Mrs. Bertie Muncy, and on his testimony and the testimony of other witnesses Mrs. Bertie Muncy and Horace Peters were indicted charged with the murder of J. M. Muncy. Mrs. Muncy and Horace Peters sued out a writ of habeas corpus, and on this hearing relator was offered as a witness by the state, and refused to testify on the ground that any testimony he might give might incriminate him. The district attorney in open court stated that he would agree that relator should not be prosecuted for any offense growing out of tlie killing of J. M. Muncy, and L. S. Kinder, Judge of the Sixty-Fourth Judicial District Court, acquiesced and approved said offer of immunity from prosecution, and informed relator that he would not be prosecuted for any offense growing out of the killing of his father, but the witness still refused to testify, when the court entered an order adjudging relator guilty of contempt, the order being as follows: “And the said witness refused to answer any and all questions, and gave, while on the stand and in open court, his reason for his refusal to answer said question that it would incriminate him, and the state by its counsel in open court promised the said witness immunity from prosecution and punishment for said offense, and said promise was acquiesced in by the court, and the said witness was assured of immunity from prosecution for said offense, and, it appearing to the court that there is no indictment or complaint or prosecution of any kind pending against said witness, and the court thereupon being of the opinion that the questions propounded would not incriminate the witness, and the said witness having been promised immunity from prosecution, and he having agreed with the district attorney to testify herein, upon said promise of immunity, it is therefore ordered and adjudged by the court that said witness is in contempt of court for his refusal to answer said questions, and it is further the order, judgment, and decree of the court that he, the said Elbert Muncy, be confined in jail of Floyd county, Tex-., until he shall answer said questions, and it is therefore ordered by the court that the said witness, Elbert Muncy, be and he is hereby remanded to the custody of the sheriff of said Floyd county, Tex., until he shall answer said questions and testify as a witness in said causes.” It is thus seen that when relator was called before the grand jury he was offered immunity, and accepted same, and did testify before the grand jury, a sworn statement of such testimony being incorporated in the record, and is as follows: “About a week ago, I heard Horace Peters tell mama she ought to kill my papa. Yesterday evening mama said, Would I kill papa? I told her I would kill him if I could, but I was too nervous. While papa was gone to town, mama said she might kill papa if she could. Yesterday evening I told mama X would say I shot papa. I got up this morning and went out to the closet and told them the horse was out in the yard. Papa said, ‘Let him go.’ As I came in, mama stepped out on the floor. I lay down on the bed. I then heard the pistol shot or fire. I then heard it fall on the floor. I went out and told 'Judge Stalbird I did it, and when I told you all I killed him X did it to save my mama.” After being remanded to jail for refusing to testify on the habeas corpus trial, relator sued out a writ of habeas corpus, which was granted by Judge Davidson, and the cause set for hearing on the 8 th day of October, it being the first day set for hearing of causes at this term of court. At the hearing of the case the testimony offered was substantially as above; the relator claiming that .he could not be forced to testify, as section 10 of the Bill of Rights provides that no person shall be compelled to testify against himself. There is and can be no question that no person can be compelled to testify in a criminal ease pending against him, nor give testimony on the trial of another on which a prosecution may or can be founded against him. To this expression of the law we give our full assent and approve what is said in the case of Ex parte Wilson, 89 Tex. Cr. R. 630, 47 S. W. 996, cited by relator, but in that case no immunity was tendered, offered, nor accepted. A different question arises here, and that is, after giving the witness immunity for prosecution, was the court attempting to force the witness to testify in regard to any matter upon which a prosecution might or could be founded against the witness? That there was no case pending against him is an admitted fact; that he had testified in regard to the same matter before the grand jury under promise of immunity is an admitted fact, but for some reason on the habeas corpus trial he declines to testify, giving as his reason that his answers might incriminate him. The district judge and district attorney again pledged him immunity from prosecution, but he declines to testify. Relator’s able attorney argues and earnestly insists that, although relator had testified before the grand jury, under an agreement that he would not be prosecuted, that relator had the right to withdraw from such an agreement, and the state could not enforce it, but all the state could do would be to prosecute relator if it desired to do so. There is no doubt the state could proceed in that manner if it desired to do so, but if the state elected not to do so, and again assured relator he would not be prosecuted for any offense growing out of this matter, why could he not be compelled to testify? In an unbroken line of decisions in this court, and the courts of other states, it is held that if a person has been tried and acquitted, he can then be compelled to testify against another, although his testimony might show a criminal connection with the offense; that if the statute of limitation furnishes a complete bar to him being prosecuted for the offense, he can be compelled to testify, on the ground that in either of these events, he would not be giving evidence against himself, for no criminal prosecution against him would lie. In an unbroken line of decisions this court has held, where the statutes of the state furnish complete immunity from prosecution for an offense, about which the witness is called to testify, lie may be compelled to testify. The first case we find on tliis question, wherein our court passed on that question, is that of Floyd v. State, 7 Tex. 215, rendered in 1855. Judge Wheeler, in rendering the opinion, held that where a statute prescribes that a witness shall be exempt from liability for any offense of which he is compelled to give evidence, he cannot claim the privilege of not answering, but he may be compelled to testify. This has been the unbroken rule of decision by our Supreme Court and this court from'that day to this, and the law as thus announced is supported by the decisions of the United States Supreme Court and the great weight of authority, both in this country and in England. And while relator does not seriously contest this rule of law, yet he says the Legislature of this state by no statutory enactment has declared such to be the rule in cases of murder, and similar cases. Upon what ground is it the courts hold that the witness is compelled to testify? It is that, either by an acquittal, by limitation, or by statutory enactment, no prosecution will lie against the witness about which he may be called to testify, and we might here say that we agree to the rule that the exemption from prosecution must be so broad as to absolutely prohibit his prosecution and conviction for any offense about which he may be called to testify, otherwise he will be within the protection of the Constitution, and he cannot be compelled to testify. But if the immunity given him by the law of the state is such as to absolutely protect him from all punishment for the offense about which he is called to testify, then under such circumstances he could not be said to be giving evidence against himself, and the constitutional inhibition has no application any more than if he has been tried and acquitted, or the offense was barred by the statute of limitation, for in any and all of said events he is' protected against the evidence he may give being used agmnst Mm, and this is what the Constitution guarantees him — nothing more and nothing less. The question then would be, Do the laws of this state furnish relator full and ample immunity from punishment, if he should be compelled to testify? If so, he should be remanded to undergo the punishment assessed by the trial judge for contempt; if the law does not guarantee him absolute immunity from punishment in regard to the matters about which he would be compelled to testify, he is entitled to be discharged. The record, as hereinbefore recited, discloses that under an agreement of immunity from prosecution he did testify before the grand jury; that when called to testify on the habeas corpus trial of his mother, and Peters, he refused to testify, when he was again guaranteed immunity from prosecution by the district attorney, in open court, with the knowledge, sanction, and approval of the district judge, and he was so informed. So the sole question is, Did the district judge and district attorney have the authority and power under our law to guarantee and give this immunity from prosecution, and would our law and the courts enforce that immunity and protect relator from prosecution and punishment for any matter about which he might be called to testify in regard to the killing of his father? The right under our law of the district attorney, with the knowledge and consent of the district judge, to guarantee immunity from prosecution and punishment has never been seriously questioned in this state. In the case of Barrara v. State, 42 Tex. 263, and other cases, when our Supreme Court had criminal jurisdiction, it was recognized that they had this authority and power under our laws. When this court was created in 1876, in the first volume of its reports, in the case of Bowden v. State, 1 Tex. App. 145, it recognized and enforced the rule. In that case the district attorney, with the approval of the district judge, agreed with Bowden that he would dismiss the case against him if he would testify against Arnold, who was also indicted for the offense. The case was dismissed, but subsequently Bowden was rein-dicted, tried, and convicted, although he had regularly attended court, and stood ready to testify at any and all times should Arnold be tried. In passing on that case, this court said: “There has been no default on his (Bowden’s) part, and, until there is, the plighted faith of the state should have been kept inviolate in his immunity from further prosecution and punishment” — and the conviction was reversed on this sole ground. And this rule of law has been reaffirmed by this court in the cases of Holmes v. State, 20 Tex. App. 517; Ex parte Greenhaw, 41 Tex. Cr. R. 278, 53 S. W. 1056; Hardin v. State, 12 Tex. App. 190; Camron v. State, 32 Tex. Cr. R. 182, 22 S. W. 682, 40 Am. St. Rep. 763. In the Greenhaw and Camron Cases, supra, this question is discussed at length, and it is held that the courts of this state, under our Code, have authority to give and guarantee absolute immunity to a person who may be called to testify in regard to the transaction. If the rule of law was otherwise, and there was any question that the immunity given and tendered by the court was not an absolute immunity from punishment for the matters about which he is called to testify, then we think relator’s contention would be sound. In the case of Young v. State, 45 Tex. Cr. R. 202, 75 S. W. 23, it was held that a dismissal of a case in one court, in consideration of the appellant’s testifying, was binding upon all the courts of the state, and the defendant could not be prosecuted for any matter growing out of the transaction in another, and upon appeal the case was reversed and dismissed. In that ease the trial judge testified that there were two cases pending in Grimes county against the appellant, and up•on the district attorney making a motion to dismiss to obtain the testimony of Young against Dunlap, he permitted the cases, one charging burglary and the one charging theft, against Young to he dismissed, but says he at the time remanded Young to the custody of the sheriff of Brazos county, where an indictment for theft growing out of the same transaction was pending; the stolen property having been carried into that county. This court held that the dismissal of the cases for burglary and theft, in consideration of Young testifying, carried with it complete immunity for any matter growing out of the transaction, and he could not thereafter be prosecuted for the theft in Brazos county, as hereinbefore stated, reversing and dismissing the case against Young. Thus it is seen that our courts have construed the law to carry complete immunity from prosecution for any matter growing out of the transaction, and will not countenance nor permit the prosecution of a person under such circumstances. See, also, Stanford v. State, 42 Tex. Cr. R. 34S, 60 S. W. 253; Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782; Taylor v. State, 50 Tex. Cr. R. 184, 95 S. W. 119; Kain v. State, 16 Tex. App. 311; Elliott v. State, 19 S. W. 249, and other cases. Shortly after the writer’s accession to this court the case of Hughes v. State, 62 Tex. Cr. R. 288, 136 S. W. 1068, was decided, and we therein held, in accordance with the authorities above cited as we understood them, that if complete immunity from prosecution for the transaction was tendered the witness, he could be compelled to testify. There was no dissent filed in that case, but in the later case of Ex parte Napoleon, 144 S. W. 269, where we announced the same rule, Judge Davidson filed a vigorous dissent. At the time the opinion was handed down Judge Davidson stated that he would file a dissenting opinion, but the dissent was not prepared at the time, and the writer did not see it until it was published in the Southwestern Reporter. In this dissenting opinion Judge Davidson does not deny that the courts of this state, under our laws, have the authority to give and guarantee immunity from prosecution, but his dissent is based upon the proposition that he cannot he compelled to testify against others in matters vn, which he is criminally liable, without his consent, citing section 10 of the Bill of Rights, and cases cited, which we do not think sustain his proposition, and later we will take up each of these cases and discuss them. He says; “An inspection of the cases cited in the Park Case shows that in each case there was an agreement with the witness to testify upon guaranteed immunity from prosecution. No case has been cited, and I believe none can be found in Texas, holding that a witness can be forced to testify against his confederates in a criminal prosecution, unless he has agreed so to do. He cannot even then be forced to testify. If he agrees to do so upon promise of immunity, and fails or refuses to carry out his agreement, he may be prosecuted in the ease in which he made the agreement. Neeley v. State, 27 Tex. App. 327, 11 S. W. 376; Nicks v. State, 40 Tex. Cr. R. 1, 48 S. W. 186; Ex parte Park, 37 Tex. Cr. R. 594, 40 S. W. 300, 66 Am. St. Rep. 835; Stevens v. State, 42 Tex. Cr. R. 171, 59 S. W. 545. The state may hold the indictment against him until he has complied with the agreement. Ex parte Greenhaw, 41 Tex. Cr. R. 281, 53 S. W. 1024, and other cases cited, supra. In the Camron Case, 32 Tex. Cr. R. 180, 22 S. W. 682, 40 Am. St. Rep. 763, an agreement made with the prosecution was required to be fulfilled. It was further held that, where the state has made such agreement, and the witness has complied with its terms, he is entitled to immunity. But in no case has it been held that the witness can be compelled to testify to any fact which would incriminate him. He may agree to do so; and, if he fails or refuses, he may be prosecuted as if he had not entered into such agreement. With the constitutional inhibition and guaranty that he shall not be compelled to give evidence against himself, it is not readily to be comprehended how it is to be held that the state can force the witness to testify against himself, even by agreeing not to prosecute. The witness may testify if he chooses; but it is a matter within his discretion, to be controlled by him, and not by the prosecuting officers.” Thus it is seen he admits the witness can contract for immunity from prosecution, and then the immunity given is binding on the state and all its officers, and Judge Davidson, in an opinion by him, specifically so held in the case of Young v. State, 42 Tex. Cr. R. 302, 59 S. W. 890, to which opinion we refer to show what authority the district court has in the premises, and how complete immunity it can and does give, even by agreeing to a dismissal of a case, when the case is dismissed in consideration of. the witness testifying. So the question resolves itself down to the proposition, Gan the witness he compelled to testify, when immunity from prosecution is given him, if he does not desire to do so? There is and can be no question that if the witness has been tried and acquitted he can be compelled to testify; if limitation bars a prosecution against him he can be compelled to testify. All the decisions so hold, and what reason can be given, if he can be compelled to testify in those instances, that if immunity from prosecution is absolutely given him, under the laws of a state he cannot then be compelled to testify? No legal prosecution can be instituted against him in regard to the matters about which he may be called to testify in that instance, any more than in the other two instances, and, as hereinbefore stated, in the case of Floyd v. State, 7 Tex. 215, our Supreme Court, in an opinion by Judge Wheeler, held that: “If a prosecution ⅝ * * }s barred by the statute of limitations, he was bound to answer the question; for then he would not be liable to punishment. The same principle applies if the witness is exempted, by statute, from punishment, in consequence of his being made a witness. * * * And though the-answer of a witness, called to testify respecting the offense to which the exemption relates, would tend to inculpate him as a participant i/n the crime, he could not refuse to answer; for his participation in the offense could not subject him to punishment.” In that case the question before the court was, Gould the witness be compelled to testify when he did not desire to accept the immunity? and Judge Wheeler held he could. In fact in that case the witness was fined for contempt for refusing to answer the .questions as in this case, and the court held he was entitled to no relief, he being guaranteed immunity from prosecution, and should have answered the question. ‘As hereinbefore stated, this opinion was handed down by our Supreme Court in 1855, when it had jurisdiction in criminal matters, and we know of no opinion even questioning the soundness of the law there announced, until the dissenting opinion in the Napoleon Case, supra, was filed. Certainly the case of Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835, cited by Judge Davidson as sustaining his dissent, does not question the soundness of the rule of law announced in the Ployd Case, supra, but on the other hand in the Park Case, that case is cited approvingly, and the relator was discharged solely upon the ground that immunity was not given appellant from prosecution for such offenses as his testimony might and probably would necessarily be disclosed on his examination, and in the case it is held: “Article 709 further provides: ‘The attorney representing the state may at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party.’ This would seem to imply the power on the part of the state to dismiss a case against a defendant, and require his testimony. Of course, such dismissal must be with the guaranty to the witness on the part of the court against any other or further prosecution for the same offense; and this statute has been so construed. See Camron v. State, 32 Tex. Cr. R. 180 [22 S. W. 682, 40 Am. St. Rep. 763]; Neeley v. State, 27 Tex. App. 327 [11 S. W. 376]; Fleming v. State, 28 Tex. App. 234 [12 S. W. 605].” If the immunity offered would not absolutely protect the witness against prosecution for matters about which he was called to testify, then we would not question his right to refuse to answer the questions, but if complete and absolute immunity is offered, the Park Case, in the excerpt above quoted, holds with the Floyd Case that he may be compelled to testify, and the Floyd Case is cited as authority in the Park Case that the immunity must absolutely protect the witness from prosecution. In the Wilson Case cited by Judge Davidson no immunity from prosecution was offered or tendered the witness, and the question of whether the witness can be compelled to testify when given absolute immunity is not even discussed nor questioned, but the relator was discharged because the testimony could be used in a criminal prosecution against Mm. In the other cases cited by Judge Davidson in his dissent the question of whether a witness can be compelled to answer when given immunity from prosecution is not mentioned nor discussed, and has no bearing on that question. In the case of Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782, article 391 of the Penal Code is quoted, this court saying: “This article provides: ‘Any court, officer or tribunal having jurisdiction of the offenses enumerated in this chapter or any district or county attorney may subprana persons and compel their attendance as witnesses to testify as to violations of any of the provisions of the foregoing articles. Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify and for any offenses enumerated in this chapter a conviction may be had upon the unsupported evidence of an accomplice or participant.’ Kain v. State, 16 Tex. App. 282; Day v. State, 27 Tex. App. 143, 11 S. W. 36; Wright v. State, 23 Tex. App. 313, 5 S. W. 117. And it would make no difference whether the grand jury had returned a bill or was simply examining into the transaction. If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the state, it exonerates the witness whose testimony is used by virtue of the terms of the statute. Nor does it make any difference at what stage of the investigation or trial the evidence of the participant is used. The grand jury may not have been satisfied that the evidence upon which the bill was returned was sufficient to justify a conviction, but, if they had been, still, under the terms of the law, the use of the testimony of one of the participants exonerates him from prosecution. In cases where indictments have been returned, and one of the indicted parties was used as a witness for the state, this would exonerate, even though he be one of the indicted parties. ■ Article 391, supra, was enacted for the purpose of forcing witnesses to testify in behalf of the state. He cannot plead that rule of evidence which does not permit a witness to incriminate himself, because when he testifies he is exonerated from punishment, and the incriminating testimony can never be used against him. The mere fact that the participant is required to testify for the state exonerates him from punishment.” This opinion was written by Judge Davidson and concurred in by the entire court, and in it is seen this expression is used: “This article was enacted for the purpose of forcing witnesses to testify, and that when a witness is exonerated, from punishment he cannot plead the rule of evidence which does not permit a witness to incriminate himself.” No more terse and forcible expression of the law could be made. See, also, Elliott v. State, 19 S. W. 249; Taylor v. State, 50 Tex. Cr. R. 183, 95 S. W. 119, and cases therein cited. So it may be said to be an unbroken rule of decisions, both in this court and in the Supreme Court from 1855 down to the present time, that a witness may be compelled, to testify when under the law he is given complete immunity from punishment for the transaction about which he is called to testify, and the dissenting opinion in the Napoleon Case is the first time that any judge of either this court or the Supreme Court has announced the rule that the consent of the witness must first be obtained. This would render ineffective our laws in regard to immunity from punishment, and place a barrier to the enforcement of the law in many instances. The sovereignty of this country rests in the individuals composing it, and we believe as firmly as any in protecting the individual in all his rights, and believe the declaration in our Constitution that “no citizen shall be compelled to give evidence against himself” a wise provision, and that the history of the times past when inquisitorial methods were adopted, and the citizen punished for matters thus disclosed by himself, proves the wisdom of the fathers in first placing it in the Constitution of 1776, and in ingrafting it in every state Constitution since that time. 1⅛ is right the individual should thus be protected; but, when the law im-munes him from punishment, and he seeks to use this provision, not as a shield to himself, but as a shield to others, the reason for this rule of law no longer prevails, and he will not be permitted to protect others from punishment. He is and must be protected before he can be compelled to testify, but when afforded ample and full protection from punishment, then the interest of the state, the interest of society, and the law requires that he shall give such testimony within his knowledge as will aid in bringing criminals to justice and mete out to them their merited punishment. Not only is this the rule of law in this state; but, owing to the importance of this question, we have studied the law as applied in other jurisdictions, and the great weight of authority is that the witness may be compelled to testify when he has been granted immunity, and is no longer subject to punishment in regard to the matters inquired about. Relator in his brief cites us to the case of Counselman v. Hitchcock, 142 U. S. 586, 12 Sup. Ct. 195, 35 L. Ed. 1110, in which case Counselman was adjudged guilty of contempt for refusing to answer certain questions propounded to him by the grand jury, on the ground that to answer such questions might tend to criminate him. The court held that, as the law then in force did not give Counselman complete immunity from punishment, he was not compelled to answer the questions, and discharged him. In that case it was held: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes [U. S. Comp. St. 1901, p. 661] does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” To this statement of the true rule of law we give our hearty assent. The “law must afford absolute immunity against future prosecution for the offense to which the question relates,” or the witness cannot be compelled to testify. After the rendition of the above opinion, Congress amended section 860, referred to, so as to give complete immunity from punishment, and the question again came before the Supreme Court of the United States in the case of Brown v. Walker, 161 U. S. 593, 16 Sup. Ct. 644, 40 L. Ed. 819. In this case Brown had been summoned before the grand jury and refused to answer questions propounded to him, on the ground that to do so would tend to incriminate him. The court holds, speaking through Justice Brown: “(1) The act of Congress of February 11, 1893 (27 Stat. at L. 443, c. 83 [U. S. Comp. St. 1901, p. 3173]), exempting a witness from any prosecution on account of any transaction to which he may testify, * * * sufficiently satisfies the constitutional guaranty of protection against being compelled, in any criminal case, to be a witness against himself. (2) Where one state adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by -the courts of the state from which they are taken. (3) The fact that a witness cannot be shielded by statute from the personal disgrace or opprobrium attaching to the exposure of his crime does not render a statute exempting him from prosecution therefor insufficient to satisfy the constitutional guaranty of protection against being compelled to be a witness against himself.” The law furnishing Brown complete immunity, he was remanded to custody, and he was compelled, to answer the questions propounded. The opinion in that case discusses the reasons for the rule at length, and it is referred to for a learned discussion of the question. This question was again before the Supreme Court of the United States in the case of Interstate Commerce Commission v. Baird et al„ 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 860, and it was again held that, where the law furnishes complete immunity from prosecution, a witness may be compelled to testify. For other eases so holding, see Ex parte Cohen, 104 Cal. 524, 38 Pac. 364, 26 L. R. A. 423, 43 Am. St. Rep. 127; People ex rel. Aiken v. Butler, 201 Ill. 236, 66 N. E. 349; State v. Nowell, 58 N. H. 314; People v Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; State v. Morgan, 133 N. C. 743, 45 S. E. 1033; Kendrick v. Com., 78 Va. 493; Ex parte Buskett, 106 Mo. 602, 17 S. W. 753, 14 L. R. A. 407, 27 Am. St. Rep. 378; State v. Quarles, 13 Ark. 307; Higdon v. Heard, 14 Ga. 255; Wilkins v. Malone, 14 Ind. 153; Hirsch v. State, 8 Baxt. (Tenn.) 89; Frazee v. State, 58 Ind. 8; State v. Jack, 69 Kan. 387, 76 Pac. 911, 1 L. R. A. (N. S.) 167, 2 Ann. Cas. 171; People ex rel. Lewisohn, 96 App. Div. 201, 89 N. Y. Supp. 364; Id., 179 N. Y. 594, 72 N. E. 1148; Re Briggs, 135 N. C. 118, 47 S. E. 403. Many other cases could he cited; and we quote as stated in Cyc. yol. 30, p. 1161: “In a number of the states having constitutional provisions similar to that contained in the fifth amendment to the Constitution of the United States, it has been held that statutes which provide that a witness may be compelled to give self-criminating evidence, but that his answers shall not thereafter be used as evidence against him, fully preserve the constitutional privilege. It is the better opinion, however, that the constitutional privilege of refusing to answer cannot be taken away by statute, unless absolute indemnity is provided, and that nothing short of complete immunity to the witness, an absolute wiping out of the offense as to him, so that he can no longer be prosecuted for it, will furnish that indemnity, and that statutes, aiming to take away the constitutional privilege without providing complete immunity, are unconstitutional. If, however, he is thus fully protected by statute, he may be compelled to answer, though his testimony may show that he has committed a crime.” Under these texts are cited cases from almost every state in the Union, and we adhere to the rule that “nothing short of complete immunity to the witness” will justify a court in compelling a witness to testify, and if the Codes of our state, as construed in an unbroken line of decisions, had not held that, when the district attorney tenders immunity from punishment, and such offer receives the sanction and approval of the district judge, this furnished absolute and complete immunity from punishment for offenses about which he might be questioned and called to testify, we would hold that relator was within the protection of section 10 of the Bill of Rights, and he could not be compelled to testify. But, as the proof in this case shows that relator was extended and accepted immunity and testified before the grand jury; that that body returned no bill against him, and he has never been charged, by complaint or otherwise, with this offense; that when the habeas corpus trial was called, and he refused to testify, he was again tendered complete immunity from punishment by the district attorney and the district judge, which gave him absolute immunity from punishment, and he was only committed to jail for contempt after a refusal to testify under such circumstances — it is our opinion that he should be remanded to custody; and it is so ordered. The fact that on the trial the relator may not testify truthfully, and thereby become subject to a prosecution for perjury, need not be considered. The immunity given relator was immunity from punishment for any connection he may have had with the killing of his father, and if he thereafter commits perjury, or is connected with the killing of another, or thereafter commits any other offense, the immunity given for this offense would be no bar to a prosecution for an offense of any character thereafter committed. The relator is remanded. DAVIDSON, J., dissents.
On Motion for Rehearing. HARPER, J. Relator’s counsel has filed a motion for a rehearing, and an able argument thereon. We will first take up the grounds of the motion and th,en discuss the argument filed. The first ground assigned is: “The following statement in said opinion is erroneous and in the face of the record, to wit: ‘The district attorney in open court stated he would agree that the relator should not be prosecuted for any offense growing out of the killing of ,T. M. Muncy; and L. S. Kinder, Judge of the Sixty-Fourth judicial district, acquiesced in and approved said offer.’ ” The contention of relator is that the immunity offered was only immunity for “the offense of murdering J. M. Muncy.” This was the question being inquired into and investigated, but it is contended that the testimony of relator might show that he was an accomplice or an accessory to such crime, and that the immunity given would not bar a conviction for those offenses, or either of them. Such is not the law in this state. In the ease of Heinzman v. State, 34 Tex. Cr. R. 79, 29 S. W. 482, this court holds: “The rule is that such an agreement can only be made with a witness in regard to a particular transaction under investigation. His protection extends to any connected offense which in good faith he discloses, as a part of the one to which he was admitted as a witness, though in truth the transaction constitutes a separate crime, but not two distinct offenses” (citing 1 Bish. Crim. Proc. §§ 1164, 1165; Rex v. Lee, Russ. & R. 361; Rex v. Brunton, Russ & R. 454; People v. Whipple, 9 Cow. [N. Y.] 707). This has always been the rule in this court, and was specifically enforced in the case of Young v. State, 45 Tex. Cr. R. 203, 75 S. W. 23, referred to in the original opinion. Other cases might be cited but we deem it unnecessary. And when the district attorney agreed “that there would be no prosecution of the witness for the offense of murdering J. M. Muncy,” this embraced any connected offense which he might disclose, though in truth a separate and distinct offense should be disclosed growing out of the transaction under investigation. The relator next questions the statement in the original opinion that he was promised immunity when called before the grand jury, and says he cannot understand how we made that mistake, and devotes considerable space, of a presentation of that matter. We might plead that if we were misled, we were misled by relator’s counsel in their brief and argument, for therein they say: “But it is contended by the state that the relator haying testified before the grand jury, and having agreed with the district attorney that he would testify to the same facts on the trial of the case, he is bound by his agreement, and must testify” — and then relator’s counsel argues that if he had made such agreement, he had a right to withdraw from the agreement, and cites cases wherein a withdrawal had been recognized, among them the case of Neeley v. State, 27 Tex. App. 327, 11 S. W. 376. In the testimony of District Attorney Mayfield will be found the following expression: “I don’t think I asked him if he would testify to these things if I wouldn’t prosecute him. As to my agreeing not to prosecute him in that connection, that was, discussed. I don’t know that I told him that I wouldn’t, but that was the meaning of my talk to him, but I do not know the words used.” The witness had first refused to testify before the grand jury, and after this conversation with the district attorney he did testify before the grand jury, and in the original brief appellant’s counsel seemed to have come to the same conclusion we did, but now another- of the counsel for relator says such a conclusion is unauthorized. But that is wholly immaterial, as it is conclusively shown and admitted by relator’s counsel that immunity was tendered, both by the district attorney and the district judge, before relator was fined for refusing to testify. In the third ground the same statement is assailed, and the further statement that there is no ease pending against relator. In the briefs by Mr. Penry for relator, and Mr. Works for the state, and in their oral argument before this court, it was conceded that no case had ever been filed against relator, and County Attorney Bartley so testified in the agreed statement of facts now on file in this court. He states he started to file a complaint, but says: “I had come in possession of new facts, and never wrote any complaint against the boy at all; and no warrant was ever issued for his arrest. There is no complaint against this boy now, nor has there been since that time.” The remainder of the motion complains of the ruling and conclusions of law in the case, and appellant cites a number of cases from the Federal Reporter as sustaining his contention. These opinions are by federal District Courts, and were rendered prior to the last decisions by the United States Supreme Court, cited in the original opinion, and, of course, would no longer be authority, for the court having final appellate jurisdiction over them has ruled and held otherwise. Brown v. Walker, 161 U. S. 593, 16 Sup. Ct. 644, 40 L. Ed. 819, and cases there cited, and cited in the original opinion. Appellant cites us also to the case of Holmes v. State, 20 Tex. App. 517, as sustaining his contention, and argues that the law is correctly enunciated in that ease. Appellant ought to remember that the opinion in the Holmes Case was contrary to all the opinions rendered by this court and the Supreme Court prior to that time, and shortly after it was rendered it was overruled in the case of Camron v. State, 32 Tex. Cr. R. 183, 22 S. W. 682, 40 Am. St. Rep. 763, and the rule announced in the Camron Case has been consistently followed in this state since its rendition. And in that case it was specifically held that under our Code of Criminal Procedure the district judge and district attorney were authorized to grant and give complete immunity from punishment. For a further discussion of the question, and the authorities relied on so holding, we refer to that case, and the cases cited in the original opinion. Relator, in his brief, cites two cases laying down the following rule: “In the case of Cullen v. Commonwealth, 24 Grat. (Va.) 624, quoted with approval by Justice Sherwood in the well-considered case of Ex parte Carter [166 Mo. 604], 66 S. W. 540 [57 L. R. A. 654], the following language is used: ‘That nothing short of complete amnesty to the witness, and absolute wiping out of the offense as to him, so that he could no longer be prosecuted for it, would furnish indemnity.’ In the case of State v. Jack, 69 Kan. 387, 76 Pac. 911, 1 L. R. A. (N. S.) 167, 2 Ann. Cas. 171, the court, in reply to the contention that complete immunity had not been provided, used the following language: ‘As to prosecutions for those crimes to which his evidence relates, under the Immunity Act, the witness is in the same position, in so far as there is a possibility of using his evidence against him, as though there were no such crimes provided by the statute.’” To this rule of law we tried to make It plain in the original opinion we acceded and concurred in, but if we did not do so, we now say and hold that the immunity given must be complete and absolute immunity as to the transaction under investigation; and so as to that feature of the question we need not discuss; and, as in their brief and argument relator concedes that under our law the district judge and district attorney can give absolute immunity under a contract with the witness, and this will absolutely protect him from future prosecution, and concedes that as the law now is, if the prosecution is barred by the statute of limitation; is barred by the witness having been tried and acquitted; is granted immunity specifically by our statute, as under our gaming laws — then the witness can be compelled, to testify, and neither of these is violative of his constitutional right, so it is unnecessary to discuss those features either. While in his argument relator goes into the matter at length and discusses many authorities, when boiled down to its last analysis, his contention amounts to this: That if the statute gives specific exemption as in gaming cases, the witness can be compelled, but if, instead of doing that, the statute gives power and authority to the district judge and district attorney, when they deem that the interests of public justice demand it, to grant immunity, then in that event, although the immunity they can and do give is absolute, yet they must get down on their knees and beseech the person whom it is desired to use as a witness to enter into a contract and agreement with the state. What an ignoble spectacle the great state of Texas would be reduced to. We grant and state that if the power to give this immunity was not vested in the district judge and district attorney, by our Griminal Code and the decisions of this court, then the witness could not be forced to testify. On the other hand, when it is conceded, as is done in all the opinions cited by appellant, and cited by us in the original opinion, that our Criminal Code does give and grant authority and power to the district attorney and district judge to give absolute immunity from punishment, and that it is binding upon all courts, there is no rule, nor would there be sound sense in any rule, which would hold that, in case the prosecution is barred by limitation; is barred by an acquittal; is granted specifically as in gaming cases — the witness could be compelled to testify, and not be compelled to do so in the other instance. Why is he compelled to testify in the first instance mentioned? Because no prosecution can be maintained against him. Then why should he not be compelled in the latter instance, for no prosecution can be maintained against him? It is ingenuously argued that it does not bar an indictment; it simply bars a conviction. Neither does the statute in regard to gaming bar an indictment; it simply bars a conviction. And so in this instance the immunity granted by the court perpetually bars a conviction in this state, and it is an absolute bar to a conviction, as is former acquittal, limitation, etc. Again, it is said that he must testify truthfully. In a gaming case, if a man is called as a witness, the statute gives him immunity. But if he testifies that he was in no game, and never saw the person on trial gamble, if it should develop that he did witness the game, • and did gamble with the person on trial, he could be prosecuted for perjury, and so he might in this instance, but this does not prevent the immunity being as complete in one instance as in the other. Relator has filed what he terms an amended argument on motion for rehearing, in which he contends that the rules of law announced in this opinion are contrary to our decision in the case of Snodgrass v. State, 150 S. W. 162, 41 L. R. A. (N. S.) 1144, in which we held that after conviction the Constitution of this state conferred upon the Governor the sole power of granting pardons. To the rules of law announced in the Snod-grass Case we adhere, and we thank counsel for his statement “that it is one of the most exhaustive and luminous decisions ever rendered in Texas,” but wherein he misconceives that opinion is in contending that power of pardon is inherent in the executive department of the government. The pardoning power is inherent in sovereignty, and, sovereignty abiding in the people of this state, they could confide it to or confer it upon any of the departments of the government they saw proper. In the Constitution this power is given to the Governor after conviction only, and the power to pardon before conviction still rests with the sovereign people, and they, acting through their representatives, the Legislature, could bestow it upon the Governor, the courts, or any other agency of government, or by legislative act could reprieve or pardon before conviction, and on this theory the second suspended sentence law was sustained by this court See Baker v. State, 158 S. W. 998. In that case it was held the Legislature had the authority and power before conviction to, in effect, authorize the giving or granting of pardon. Under our Constitution the power to pardon granted to the Governor is to pardon after conviction. The line of authority in the Legislature to give to others the authority to pardon, grant reprieves, amnesty, etc., must there be drawn, and there is no limitation on the Legislature before conviction otherwise all laws which provide that a person may be called to testily but shall not thereafter be prosecuted, would be void, and this relator concedes is not true, for he concedes that Floyd v. State, 7 Tex. 215, correctly lays down the law. He says: “The Floyd Case lays down the obviously correct rule that where an acquittal is liad or the offense barred by the statute of limitation (both statutory modes for the obliteration of offenses), the witness cannot claim his constitutional privilege of silence. To this class also belong the Griffin, Taylor, Kain, and Elliott Cases, cited by Judge HARPER, they being all gaming eases, where the immunity statute protects the witness. The cases cited from other states and from the Supreme Court of the United States, in the latter part of the majority opinion, are without exception eases arising under immunity statutes, mostly anti-trust cases, where the courts hold, as do the Texas courts, that the witness is amply protected. We concede the correctness of all these decisions. The Legislature may provide the immunity of a witness because it has the sole right to define crime, and the very fact that every state in the Union from which the majority cite cases has seen fit to pass general immunity statutes, pertaining to certain offenses, argues very strongly that none of these statutes recognize the courts as having inherent power to grant immunity, else why such statutes.” We did not hold in the original opinion, nor do we now hold, that the courts have inherent power to grant immunity. In fact we agree with relator that they have not this inherent power, but whatever authority they have or exercise in this matter must arise and be given them by laws enacted by the Legislature, and all the decisions quoted in the original opinion show that this authority and power as exercised by the courts of this state is under • specific statutory provisions. A reading of those eases will demonstrate this beyond question. There is but one other question which we will refer to, and that is: It is contended that this gives to the courts the power to suspend a law of the state. Relator cites no law that will be suspended under such circumstances, and we know of none. In fact the courts derive their power to grant immunity, before trial and conviction, from the laws of the state, as shown in the Camron and other cases cited in the original opinion. The Legislature, the lawmaking power, has placed these provisions in our Code of Criminal Procedure, and conferred this authority on the judiciary, and, as the representatives of the sovereignty of the soil, they had the power to do so. No law is suspended but the courts in their action are but giving life and vitality to the laws as passed by the Legislature. Articles 37, 630,- 790, White’s Ann. Code of Procedure, and cases cited in sections 787, 556, subd. 2. Judge DAVIDSON at the time the original opinion was written, gave notice that he would file a dissent, but he has not done so as yet. If he should later file a dissenting opinion, we may at that time add further to this opinion overruling the motion for a rehearing.
DAVIDSON, J. In dissenting I do not care to make a statement of the facts. While I am not agreeing fully as to the scope of the statement in the opinion by Judge HARPER, yet so far as the dissenting views that I express are concerned, I have not considered it very material as to whether the proffered immunity from punishment or prosecution on the part of the district attorney ánd the district judge relates only to this particular homicide, or whether it includes all connected crimes, or alleged connected crimes. The proposition on which I base this dissent is that it makes no difference how broad the proffer of immunity might be; that it is without the power of the district attorney or district judge, either or both, to grant absolute immunity from punishment. It seems that the leading case cited by Judge HARPER, and upon which he perhaps mainly bases his opinion, is Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819, at least it is cited as authority to uphold the majority opinion as found in his original opinion and in the opinion on rehearing. An inspection of that case shows it was rendered by a divided court, four of the members dissenting. Those who dissented were present Chief Justice White of that august tribunal, and Justices Field, Gray, and Shiras. That ease then became the law ■merely by a majority of one member of the court. The explanations, differentiations, and modifications of that case which have since taken place have greatly weakened the majority opinion, and lessen its scope of operation from the great extent to which it was at first supposed to operate. However, as that ease is the leading one upholding the right to force a witness to testify where there is complete statutory immunity, and as it was regarded by the dissenting judges to be in direct conflict with the case of Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110, it requires some special consideration as to its meaning and extent. The prevailing opinion in that case contains, inter alia, the following observations: “The maxim, ‘Nemo tenetur seipsum aecus-are,’ had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under ■ investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat Mm if he be timid, or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American, jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment. [161 U. S. 596, 16 Sup. Ct. 646, 40 L. Ed. 819.] * * * The act of Congress in question, securing to witnesses immunity from prosecution, is virtually an act of general amnesty, and belongs to a class of legislation which is not uncommon either in England (2 Taylor on Evidence, § 1455, where a large number of similar acts are collated), or in this country. Although the Constitution vested in the President ‘power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,’ this power has never been held to take from Congress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, although, as was said by that court in Ex parte Garland, 4 Wall. 333-380, 18 L. Ed. 366: ‘It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pend-ency, or after conviction and judgment.’ ” 161 U. S. 601, 16 Sup. Ct. 648, 40 L. Ed. 819. Quoting with approval a California case and a Tennessee case, the prevailing opinion continues: “In such a case he is not compelled to give evidence which may be used against himself in any criminal case, for the reason that the Legislature has declared that there can be no criminal case against him which the evidence which he gives may tend to establish. In Hirsch v. State, 8 Baxt. (67 Tenn.) 89, the same construction was given to a similar statute in Tennessee, which exempted witnesses from prosecution for offenses as to which they had given testimony before the grand jury, the court holding that this was ‘an abrogation of the offense’; that the witness could neither be accused by another, nor could he accuse himself, and therefore he could not criminate himself by such testimony. It is but just to say, however, that in Warner v. State, 13 Lea (81 Tenn.) 52, the same statute was construed as merely offering a reward to a witness for warning his constitutional privilege, and not as eom-pellmg him to answer. [161 U. S. at page 604, 16 Sup. Ct. 649, 40 L. Ed. 819] * * * It is entirely true that the statute does not purport, nor is it possible for any statute, to shield the witness from the personal disgrace or opprobrium attaching to the exposure of his crime; but, as ,we have observed, the authorities are numerous, and very' nearly uniform, to the effect that, if the propos-' ed testimony is material to the issue on trial, the fact that the testimony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure. [161 U. S. 605, 16 Sup. Ct. 650, 40 L. Ed. 819.]” The court then proceeds to hold that since the act of Congress provided complete immunity from the witness being “prosecuted or subjected to any penalty or forfeiture, for or on account of any transaction, matter, or thing concerning wMch he may testify, or produce evidence, documentary or otherwise,” the fifth amendment to the federal Constitution had no application to the case, as he was not thus made a witness against himself to the extent of causing self-incrimination. In the dissenting opinion in that case Justices SMras, Gray, and White (present Chief Justice of the United States), quoting from the leading case of Counselman v. Hitchcock, 142 U. S. 547, 562, 12 Sup. Ct. 195, 198 (35 L. Ed. 1110) said: “It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against Mmself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony wMch might tend to show that he had himself committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against wMch it seeks to guard. 142 U. S. 562 [12 Sup. Ct. 195, 35 L. Ed. 1110].” 161 U. S., at page 618, 16 Sup. Ct. 659, 40 L. E'd. 819. The dissent, continuing, shows that the prevailing opinion in the case is in direct conflict with Counselman v. Hitchcock, supra. The dissent, speaking of the immunity statute of Congress, continues: “It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him, or his property, in a criminal proceeding in such court. It could not prevent the obtaining and use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on wMch he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.” 161 U. S. 619, 16 Sup. Ct. 659, 40 L. Ed. 819. Quoting again: “As already said, the very fact that the founders of our institutions, by making the immunity an express provision oí the Constitution, disclosed an intention to protect it from legislative attack, creates a presumption against any act professing to dispense with the constitutional privilege.” 161 U. S. 621, 16 Sup. Ct. 660, 40 L. Ed. 819. “It is certainly speaking within bounds to say that the effect of the provision in question, as a protection to the witness, is purely conjectural. No court can foresee all the results and consequences that may follow from enforcing this law in any given case. It is quite certain that the witness is compelled to testify against himself. Can any court be certain that a sure and sufficient substitute for the constitutional immunity has been supplied by this act; and, if there be room for reasonable doubt, is not the conclusion an obvious and necessary one? “It is worthy of observation that opposite views of the validity of this provision have been expressed in the only two cases in which the question has arisen in the circuit court —one, in the case of the United States v. James, 60 Fed. 257 [26 L. R. A. 418], where the act was held void; the other, the present case. In most of the cases cited, wherein state courts have passed upon analogous questions, and have upheld the sufficiency of a statute dispensing with the constitutional immunity, there have been dissenting judges. “A final observation, which ought.not to be necessary, but which seems to be called for by the tenor of some of the arguments tha