163 S.W. 29 | Tex. Crim. App. | 1913
Lead Opinion
Relator was called as a witness before the grand jury of Floyd County, Texas, when said body was examining witnesses in regard to the killing of J.M. Muncy. The relator is a boy twelve 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 the 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 *549 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, Texas, 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, Texas, 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 I 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 I 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 8th 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 case 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, 47 S.W. Rep., 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 from 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 *550 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, he may be compelled to testify. The first case we find on this question, wherein our court passed on that question, is that of Floyd v. State,
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 would 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 can not 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 *551 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 givebeing used against him, 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,
Shortly after the writer's accession to this court the case of Hughes v. State, 62 Tex.Crim. Rep., 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,
"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 can not 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 case in which he made the agreement. Neely v. State, 27 Texas Crim. App., 324, 11 S.W. Rep., 376; Nicks v. State, 40 Tex.Crim. Rep., 48 S.W. Rep., 186; Ex parte Park, 37 Tex.Crim. Rep., 40 S.W. Rep., 300, 66 Am. St. Rep., 835; Stevens v. State, 42 Tex.Crim. Rep., 59 S.W. Rep., 545. The State may hold the indictment against him until he has complied with the agreement. Ex parte Greenhaw,
"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,
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 *555
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 him. 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 have no bearing on that question. In the case of Griffin v. State,
This opinion was written by Judge Davidson and concurred in by the entire court, and in it is seen this expression and used: "This article was enacted for the purpose of forcing witnesses totestify, and that when a witness is exonerated from punishment he can not 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 *556
also Elliott v. State, 19 S.W. Rep., 249; Taylor v. State,
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,
"1. The Act of Congress of February 11, 1893 (27 Stat. at L., 443), 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 can not 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.,
"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 *558 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 can not 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 is 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, that 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, be connected with the killing of another, if another, or thereafter commits any other offense, the immunity given for this crime would be no bar to a prosecution for an offense of any character thereafter committed.
The relator is remanded.
Relator remanded to custody.
DAVIDSON, JUDGE, dissents. *559
Dissenting Opinion
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 *564
or prosecution on the part of the district attorney and 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,
"The maxim nemo tenetur seipsum accusare 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 brow-beat him 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 *565
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." (
. . . "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, Section 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 in cases of individuals after conviction, although as was said by that court in Ex parte Garland, 4 Wall., 333: `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 pendency or after conviction and judgment.'" (
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,
"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 proposed 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." (Id., p. 605.)
The court then proceeds to hold that the Act of Congress, since it 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 which he may testify, or produce evidence documentary or otherwise," that the Fifth Amendment to the Federal Constitution had no application to the case, as he was not *566 thus made a witness against himself to the extent of causing self-incrimination.
In the dissenting opinion in that case Justices Shiras, Gray and White (present Chief Justice of the United States), quoting from the leading case of Counselman v. Hitchcock,
"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. Rep., 257, 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 seem to be called for by the tenor of some of the arguments that have *567 been pressed on the court, is that the constitutional privilege was intended as a shield for the innocent as well as for the guilty. A moment's thought will show that a perfectly innocent person may expose himself to accusation, and even condemnation, by being compelled to disclose facts and circumstances known only to himself, but which, when once disclosed, he may be entirely unable to explain as consistent with innocence.
"But surely no apology for the Constitution, as it exists, is called for. The task of the courts is performed if the Constitution is sustained in its entirety, in its letter and spirit." (Id., 627, 628.)
Justice Field, also dissenting in the case, among other things, observed: "The citizen can not be denied the protection of absolute silence which he may invoke, not only with reference to the offense charged, but with respect to any Act of criminality which may be suggested. (
"The constitutional guarantee is not fully secured by simply exempting the witness from prosecution for the designated offense involved in his answer as a witness. It extends to exemption from not only prosecution for the offense under consideration but from prosecution for any offense to which the testimony produced may lead.
"The witness is entitled to the shield of absolute silence respecting either. It thus exempts him from prosecution beyond the protection conferred by the Act of Congress. It exempts him where the statute might subject him to self-incrimination.
"The amendment also protects him from all compulsory testimony which would expose him to infamy and disgrace, though the facts disclosed might not lead to a criminal prosecution. It is contended, indeed, that it was not the object of the constitutional safeguard to protect the witness against infamy and disgrace. It is urged that its sole purpose was to protect him against incriminating testimony with reference to the offense under prosecution. But I do not agree that such limited protection was all that was secured. As stated by counsel of the appellant, `it is entirely possible, and certainly not impossible, that the framers of the Constitution reasoned that in bestowing upon witnesses in criminal cases the privilege of silence when in danger of self-incrimination, they would at the same time save him in all such cases from the shame and infamy of confessing disgraceful crimes and thus preserve to him some measure of self-respect. . . .' It is true, as counsel observes, that `both the safeguard of the Constitution and the common law rule spring alike from that sentiment of personal self-respect, liberty, independence and dignity which has inhabited the breasts of English speaking peoples for centuries, and to save which they have always been ready to sacrifice many governmental facilities and conveniences. In scarcely anything has that sentiment been more manifest than in the abhorrence felt at the legal compulsion upon witnesses to make concessions which must cover the witness with lasting shame and leave him degraded both in his own eyes and those of others. What can *568 be more abhorrent . . . than to compel a man who has fought his way from obscurity to dignity and honor to reveal crimes of which he had repented and of which the world was ignorant?'"
"This court has declared, as stated, that `no attempted substitute for the constitutional safeguard is sufficient unless it is a complete substitute.' Such is not the nature and effect of this statute of Congress under consideration. A witness, as observed by counsel, called upon to testify to something which will incriminate him, claims the benefit of the safeguard; he is told that the statute fully protects him against prosecution for his crime; `but,' he says, `it leaves me covered with infamy and unable to associate with my fellows'; he is then told that under the rule of the common law he would not have been protected against mere infamy, and that the constitutional provision does not assume to protect against infamy alone, and that it should not be supposed that its object was to protect against infamy even when associated with crime. But he answers: `I am not claiming any common law privilege, but this particular constitutional safeguard. What its purpose was, does not matter. It saves me from infamy, and you furnish me with no equivalent, unless by such equivalent I am equally saved from infamy.' And it is very justly urged that `a statute is not full equivalent under which a witness may be compelled to cover himself with the infamy of a crime, even though he may be armed with a protection against its merely penal consequences.'" (Id., 631 to 633.)
"Every one is protected by the common law from compulsory incrimination of himself. This protection is a part of that general security which the common law affords against defamation, that is, against malicious and false imputations upon one's character, as it defends against injurious assaults upon one's person, even though the defamation is created by publication made by himself under compulsion. The defamation arising from self-incrimination may be equally injurious as if originating from the maliciousness of others. The reprobation of compulsory self-incrimination is an established doctrine of our civilized society. As stated by appellant's counsel, it is the `result of the long struggle between the opposing forces of the spirit of individual liberty on the one hand and the collective power of the State on the other.' As such, it should be condemned with great earnestness.
"The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to every one, and needs no illustration. It is plain to every person who gives the subject a moment's thought.
"A sense of personal degradation in being compelled to incriminate one's self must create a feeling of abhorrence in the community at its attempted enforcement.
"The counsel of the appellant justly observes on this subject, as on many of the proceedings taken to escape from the enforcement of the constitutional and legal protection, established to guard a citizen from any unnecessary restraints upon his person, action or speech, that `the proud sense of personal independence which is the basis of the most *569 valued qualities of a free citizen is sustained and cultivated by the consciousness that there are limits which even the State can not pass in tearing open the secrets of his bosom. The limit which the law carefully assigns to the power to make searches and seizures proceeds from the same source.'
"The doctrine condemning attempts at self-incrimination is declared in numerous cases. Starkie, in his treatise on Evidence, observes that the rule forbidding such incrimination is based upon two grounds, one of policy and one of humanity, `of policy because it would force a witness under a strong temptation to commit perjury, and of humanity because it would be to extort a confession by duress, every species and description of which the law abhors.' (Am. ed., pp. 40, 41.)
"But there is another and conclusive reason against the statute of Congress. It undertakes, in effect, to grant a pardon in certain cases to offenders against the law, that is, on condition that they will give full answers to certain interrogatories propounded. It declares that the alleged offender shall not be punished for his offense upon his compliance with a certain condition. The legal exemption of an individual from the punishment which the law prescribes for the crime he has committed is a pardon, by whatever name the Act may be termed. And a pardon is an Act of grace which is, so far as relates to offenders against the United States, the sole prerogative of the President to grant."
"In Ex parte Garland, 4 Wall., 333, this court, after stating that the Constitution provides that the President shall have power to grant reprieves and pardons for offenders against the United States, except in cases of impeachment, says: . . . `This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him can not be affected by any legislative restrictions.'
"Congress can not grant a pardon. That is an act of grace which can only be performed by the President. The constitutional privilege invoked by the appellant should have had full effect, and its influence should not have been weakened in any respect by the statute which attempted to exercise a prerogative solely possessed by the President." (
After collating the authorities and discussing the principles involved therein, the United States Supreme Court in U.S. v. Ford,
Brown v. Walker was a case which treated of a statute which declared complete immunity to a witness from prosecution on account of any matter brought out in an examination before a grand jury investigation of violations of the Interstate Commerce Act. It is undoubtedly true that many decisions can be found requiring a disclosure of matters that would incriminate the witness, were it not for statutory acts completely immuning him not merely from punishment but also from any act of prosecution,
and any step toward prosecution. An indictment found under such circumstances would be a nullity as soon as the defendant should show to the court that the crime charged was one concerning which he had given testimony in a judicial proceeding in which such statutory immunity existed. In such case and upon such showing, the defendant would not even be put to trial before a jury if the question was raised by proper procedure before a trial, and the court fully shown the fact of such testimony and immunity. But statutory immunity and judicio-administrative immunity are two vastly different matters. Statutory immunity virtually repeals the law creating the crime under the particular state of facts, or, to put it in technical form, the law defining the offense is restricted in its application so as to prevent there being an offense under a given state of facts in which the immunity is declared to exist. That this is true is apparent from even the prevailing opinion in the instant case as shown by the expressions of Judge Harper. It is there and elsewhere said that the "offense is wiped out," and that the witness "stands with respect thereto, as if it had never been committed." See Brown v. Walker,
The statute allowing the dismissal of a case against one defendant and providing that he can then be called as a witness was passed merely for the purpose of making him a qualified witness, for, under our law, where there are several persons accused of the same crime, they were not and are not competent witnesses for each other; and this statute was passed merely for the purpose of making one or more of the accused persons competent witnesses. When so rendered competent, the witness is like any other witness, subject to the same right and duties. His right to refuse to incriminate himself is the same as that of any other witness, and there is no statute which by its language takes away such right. And no statute which fails to createcomplete immunity could lawfully be passed, and this is exactlywhat was held in the prevailing opinion in Brown v. Walker,supra. That complete immunity is not guaranteed when a case isdismissed and the dismissed defendant is called to testify underthe dismissal statute above referred to (C.C.P., Art. 729) appears from the decisions of Moseley v. State,
To revert to the difference between judicio-administrative and statutory amnesty, it must be observed that to allow the former without statutory enactment would be to allow the court andState's attorney to suspend the law, in direct violation of art.1, sec. 28, Texas Constitution, which says: "No power of suspending laws in this State shall be exercised except by the Legislature." (See Harris' Ann. Const., p. 208.) This section was adopted since 1869, to-wit: January 24, 1874. Gammel's Laws of Texas, vol. 8, bottom pages 235-237, and was made to supersede the old section existing from 1845, which was in the same words as the present, except that the words "or its authority" followed the word "Legislature." This former addendum "or its authority" was cut out of the Constitution by amendment of 1874, therebyexcluding the idea that the Legislature could delegate thisauthority either to the courts or any other officer or tribunal. Not only does it exclude such idea, but it is a positiveinhibition. The very object and intent of that amendment was toprevent a delegation of the power, which delegation had worked woeful results, especially in the "Reconstruction" days. The following quotation from Harris' Texas Constitution annotated, p. 211, makes this very clear:
"(15) Act of Thirtieth Legislature, known as `wife and child *572 abandonment law,' and which gives the trial judge the power of suspending the operation of the law, contravenes this section and is unconstitutional. Ex parte Smythe, 56 Tex.Crim. Rep., 120 S.W. Rep., 200; Burch v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 206; Phillips v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 207; Adams v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 208; McFarlin v. State, 123 S.W. Rep., 133.
"(17) City charter can not authorize city to set apart a portion of the city where lewd women may ply their vocation, in contravention of the statute law of the State. McDonald v. Denton, 132 S.W. Rep., 823, 135 S.W. Rep., 1148. See also Brown Cracker Co. v. Dallas,
"(18) The Legislature alone has the power of suspending the operation of general laws, and, in exercising the power, must make the suspension general, and can not suspend general laws for individual cases or for particular localities, nor delegate authority to a city to suspend certain laws of the State as to certain individuals in certain localities. McDonald v. Denton, 132 S.W. Rep., 823, 135 S.W. Rep., 1148." Arroyo v. State, 69 S.W. Rep., 503.
This question received consideration in the case of Ex parte Smythe, 56 Tex.Crim. Rep., 120 S.W. Rep., 200, in which case this court held the wife abandonment law unconstitutional because it authorized the court to suspend punishment in violation of said section 28 of the Bill of Rights.
Again, such a power vested in our courts to thrust immunity upon a witness and hold him under indictment pending the giving of his testimony would deprive a citizen of his constitutional right to a speedy public trial. This exact question has also been recently before the court, and in the case of Waldon v. State,
If the principles of the Greenhaw case are inapplicable to this case, then the majority opinion as shown above is absolutely without any authority whatever to sustain its view, and if this case is applicable and justifies the opinion of the majority, it removes the very foundation stones upon which the civil liberty of the citizens of Texas now rests. The majority concede thatunless relator is protected from prosecution he must bedischarged, yet they cite a decision as sustaining them whichexpressly holds that the granting of immunity by the court doesnot protect the relator from indictment nor imprisonment. To my mind the distinction between this case and some cases cited in the majority opinion upon this phase of the question is obvious. In this case there can be a valid indictment and legal imprisonment. In the cases under the *573 immunity statute there could be neither, as a defendant could resort to the method of habeas corpus for his release if he were protected by the immunity statute which had obliterated the offense as to him before he had testified, but in this case he is absolutely without any remedy to obtain a speedy public trial or to obtain his discharge in case of arrest, or even bail if it were a capital offense. This exact question has been before the courts of other States, and it has been uniformly held so far as a most painstaking investigation by me has shown that the powerto thrust immunity upon a witness against his consent and compelhis testimony where such testimony implicates him in a crime, hadnever been lodged or vested in the judicial department of thegovernment.
The question of the right of the court to grant immunity came up for consideration by a Virginia court, in the case of Temple v. Commonwealth,
Upon this subject of the power of suspension of the law there was bitter contest, judicial and otherwise, in England for many years, until after the revolution of 1688, which put an end to the idea that there could be a suspension except by the power of Parliament, which in that country has all of the residuum of power. When the Federal Constitution of the United States was formed, the history of this subject was before our people, and in that instrument the power to suspend the laws was given to no officer or tribunal, except in one instance, and that is that the writ of habeas corpus can be suspended "when in case of rebellion or invasion the public safety may require it." The department or tribunal that is to suspend the writ (or law) was not fixed by the Constitution but left an open question. In the historical case of Ex parte Bollman and Swartwout (4 Cranch, 75, 100), involving the commitment of the petitioners on a charge of treason for having plotted to levy war against the United States in the Aaron Burr conspiracy, Chief Justice Marshall, on the subject of suspension of the writ of habeas corpus, said: "If at any time the public safety should require the suspension of the powers vested by this [Federal habeas corpus] act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations on which theLegislature is to decide. Until the legislative will be expressed, this court can only see its duty and must obey thelaw." (4 Cranch, loc. cit., 100.) From the time of this observation by Marshall, Chief Justice, in 1807, down through the Dorr Rebellion case (Luther Borden, 7 Howard, U.S. *574 Sup. Ct., 1), decided by Taney, Chief Justice, and on down to the case of Merryman (Taney's Rep., p. 246), also decided by Taney, Chief Justice, and on through the host of various cases arising from the War Between the States (which are collated in a valuable note in 45 L.R.A., p. 832, and additional cases found in the note to the 12th Law Edition of the Reports of the U.S. Sup. Ct., 581), and including the renowned and celebrated decision and opinion of Mr. Justice Davis in Milligan's case in 1866 (4 Wallace, U.S. Sup. Ct., pp. 1-124, 125, 126, 128, 131), and also as held by Joseph Storey in his great work on the Federal Constitution, it has been held, until this case at bar, that where there is power to suspend the law, and that power is not expressly conferred on any particular officer or department, that the legislative power alone, or the legislative power in conjunction with the executive, is the only situs of such power. But our Constitution (art. 1, sec. 28), puts this matter beyond cavil, question or dispute. In Milligan's case the learned justice in commenting on suspension of laws and habeas corpus said: "The proposition is this: `that in time of war the commander of an armed force . . . has power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to his will; and in the exercise of his lawful authority can not be restrained except by his superior officer, or the President of the United States. . . . If our fathers had failed to provide for just such contingency, they would have been false to the trust imposed on them. . . . They knew . . . that unlimited power, wherever lodged, at such a time, was especially hazardous to freemen. For this and other equally weighty reasons they secured the inheritance they fought to maintain by incorporating in a written Constitution the safeguards which time has proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the judiciary, disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. . . . They [our forefathers in forming the Constitution] limited the suspension of one great right, and left the rest to remain inviolable." (4 Wall., p. 124, 125, 126.)
Again, concerning power to suspend laws, he says: "The Virginia Assembly [in colonial times] also denounced a similar measure on the part of Governor Dunmore `as an assumed power, which the King himself can not exercise, because it annuls the law of the land, and introduces the most execrable of all systems, martial law.'"
It matters not whether the suspension of law is only in one instance, or in one class of cases, or extends to the numerous evils of martial law, in order for such an act to be violative of our Constitution; for, in the course of time, with gradual, unobserved and piecemeal encroachments, the one will beget the other.
That the Virginia Assembly as quoted above in its view that the King *575 could not suspend the laws, and that Parliament alone could suspend them, was uncontrovertably correct, see 1 Blackstone Com., pp. 136, 233, 234, 235, 236, 238, 239, 250, 251, 252, 262. That Congress alone, with the co-operation of the President, has power to suspend only the privilege of the writ of habeas corpus, and not other rights or laws, see Johnson v. Duncan, 3 Martin (La.), 530, and the note in same case in 6 Am. Dec., p. 690, 675. In this last case reference is made to the Bollman and Swartwout case, and Chief Justice Marshall is quoted as hereinabove set forth, to the effect, that the legislative department alone can suspend the laws where they are authorized to be suspended, and which authorization applies only to privilege of habeas corpus, and not to other laws, or rights. The Constitution of Louisiana at that time was in the exact words of our own Constitution as it existed prior to the amendment of 1874, ours having been copied from Louisiana.
I quote from the able brief of the applicant's counsel, as expressive of my legal and philosophical sentiments, as follows:
"In the case of Johnson v. Duncan, 6 Am. Dec., p. 675, the court says: `The power of repealing a law and that of suspending it, which is a partial repeal, are legislative powers.' If so, it is difficult to conceive how the judicial department can arrogate to itself the right to hold a murder case over relator for an indefinite time against his consent.
"That such a rule will be the sword that strikes civil liberty in Texas to its very heart and will bring us again to the inquisitorial methods of England and Spain, against which condition both the Federal and State Constitutions are framed to protect the citizens, can not be disputed. Again, conceding such power of the court, the immunity offered must be for all offenses incident to, connected with or arising out, of the transaction about which the witness is called to testify. Granting that a general promise of immunity might be this broad, it could not be contended that an immunity that was expressly limited to one offense, as was done in this case, could protect a witness. Our Penal Code provides in substance that when an agreement is entered into between two or more persons to commit a felony, that such an agreement itself, without proof that it was ever consummated, constitutes a felony and is punishable by imprisonment in the penitentiary."
The Bollman and Swartwout case, as shown by Shepard's U.S. Sup. Ct. Citations, and 3 Dig. U.S. Sup.Ct. Rep. (Lawyer Co-op. ed.), p. 3240, paragraph 93, has been cited and upheld on one topic or another, twenty-two times by the Federal Supreme Court, from the time it was rendered to the 215 United States Report, scattered all along in our history, and has never been weakened as an authority, and was the basis of the Louisiana case above mentioned on the topic at hand. It also has been cited with approval in 15 Federal cases in courts inferior to the Supreme Court.
Having shown above that there is no power to suspend the laws in this State except when done by the Legislature; and that the Legislature, under our present Constitution, considering the history thereof, *576 and change therein as above set forth, can not delegate this power; and having shown that even the Legislature is limited in the exercise of such power, let us revert to the decision in Brown v. Walker, and the proposition that courts can not suspend the criminal law of the State either with or without the request or aid of the State's attorney. In every case where the attempt has been made to serve a judicio-administrative amnesty for the giving of testimony, it has signally failed when there was no statute especially authorizing it. The cases of statutory amnesty to a witness as found in the anti-trust, interstate commerce, and bankruptcy laws, have no application, and no statute of a general nature has ever been passed applying them to the general criminal laws of this State; or to homicide, which is the crime involved in the case at bar. The cases cited hereafter deny that the courts have any such power, without statute expressly authorizing it.
In the case of Nachman (114 Fed. Rep., 995), a bankrupt was being examined as to business transactions which would incriminate him. He claimed his privilege under United States Constitutional amendment 5, providing that no person shall be compelled to incriminate himself. Against this claim was cited the bankruptcy act, 1898, sec. 7, which provides that no testimony given by a bankrupt on examination concerning conduct of his business shall be offered in evidence against him in any criminal proceeding, and the case of Brown v. Walker was cited. Following this last cited case the court said: "No act of Congress can deprive a citizen of the privilege afforded by the Constitution unless it supplies a complete protection from all
perils against which the Constitution was intended to provide. Section 7 of the Bankruptcy Act cited above, does not provide such complete immunity," citing Counselman v. Hitchcock,
In Foot v. Buchanan, 113 Fed. Rep., 156, there was an attempt to compel a witness to testify before a grand jury investigating transactions which were criminal violations of the Federal anti-trust laws, in which transactions he had participated. He claimed his exemption from giving *577
such testimony on the ground of the Fifth Amendment of the United States Constitution against compulsory incrimination. The court said: "It is set up in the answer filed by the district attorney, that the petitioner, when carried before the court upon his failure to answer questions before the grand jury, was assured bythe court that no information given by him in his answers to the questions would or could be used against him. . . . The petitioner could not be required to waive his constitutional privilege upon such an assurance by the court. He has a right to stand upon his constitutional privilege notwithstanding suchassurance, and to remain silent whenever any question is asked, the answer to which may tend to incriminate him," citing Temple v. Commonwealth,
In this, the Bell case, the court said: "No stated rule orregulation or act of administration in the given case can be constitutional which does not in some way protect the right to besilent if the citizen chooses to be silent. Whether any given citizen has exercised his right to waive his privilege, and speak voluntarily, subject to the pains and penalties of the statute against perjury, depends upon the circumstances of each particular case, and upon this alone. In this case the defendant did not waive his privilege under the Fifth Amendment, under the facts above stated" — which facts were unlawful exaction and undue compulsion of the false testimony. The court held that there can be no waiver of the rights of exemption from self-incrimination under such circumstances, that perjury could not be predicated on the false testimony, and the defendant was discharged. This case shows the great extent to which the law of exemption from self-incrimination has been carried, and how strongly the law denounces the idea that immunity can be thrust upon a witness, or that without his consent he can be compelled to waive his constitutional rights, for consent is an essentialto waiver. And in this case Brown v. Walker was fully considered, and quoted from. The opinion in this (Bell case) is an elaborate one, reviewing a host of authorities, and drawing many analogies and parallels, and is in full accord with all the able decisions on the topic. It shows that statutes granting complete immunityin one class of cases can not be applied to any other class,whether the immunity is greater or less or otherwise. But it holds there must be a statute authorizing the grant of complete *578 immunity, and that judicial inference can not take the place ofsuch a statute. As is well said in that case (81 Fed. on p. 850): "Until Congress shall set about improving the system of inquisition [in pension fraud cases], it is not to be expected that the courts shall aid its usefulness at the expense of the constitutional protection of every citizen."
Further showing that there can be no judicio-administrative immunity, and that it must be entirely statutory, the following is taken from the opinion in Hale v. Henkel, 201 U.S., on pp. 43 and 68: "If the [fifth] constitutional amendment were unaffected by the immunity statute it would put it within the power of the witness to be his own judge as to what would tend to incriminate him, and would justify him in refusing to answer almost any question in a criminal case, unless it clearly appeared that the immunity was not set up in good faith." And so said Chief Justice Marshall in the Aaron Burr treason case, 1 Burr's Trial, 244, 245, 190, 193.
Upon this subject the case of Ex parte Irvine (74 Fed. Rep., 954), decided by Judge Wm. H. Taft, afterwards President of the United States, is an authority. Judge Taft said:
"It is argued for the respondent represented by the attorneys for the U.S. he is given by virtue of the action of the government entire and absolute immunity from prosecution for the offense to which the alleged incriminating question relates, by the long approved practice of recommending to the pardon of the executive, accomplices and co-defendants whom the government calls to establish its case against the principals and other defendants. The cases of Rex v. Rudd, 1 Cowp., 331; People v. Whipple, 7 Cowp., 707, and Commonwealth v. Knapp, 10 Pick., 492, are relied upon to show the extent and binding effect of such a rule. These cases show there is an equitable right to a pardon where an accomplice is called by the government to give testimony against those with whom he was engaged in violating the law; but we do not find any authority, and none is cited to us, in which an equitable right to executive pardon, if the witness states fully and fairly the truth, has ever been held to do away with the constitutional privilege not to give evidence against himselfif he chooses to claim it. See whisky cases,
The case of State v. Warner, 81 Tenn., p. 52, involved the construction of the grand jury statute, which provided in the usual way for investigations of crime. Section 5089 (Code of Tennessee of 1858), provided as follows: "And no witness shall be indicted for any offense in relation to which he has testified before the grand jury." In construing this statute the court, on pages 62, 63, 64 of the 81st Tennessee, said:
"The purpose of the Act is to offer inducements to persons who have committed offenses against law in connection with others to divulge the secret. There is nothing compulsory in the language nor could there be without a violation of the Constitution. It recognizes by its terms a *579 want of authority in the Legislature to command the witness to testify; and merely offers a reward to him if he has or will do so. The witness may elect to take advantage of the law, or take chances of a discovery and conviction of himself. By it the Legislature proposes to buy the evidence of one guilty man against another or others, and to pay for it by exemption from indictment for the offense in relation to which he has testified. In this case the court has undertaken to compel the witness to give evidence against himself. The Constitution says this shallnot be done. The court claims the authority under section 5089. Both the Legislature and the courts are creatures of the Constitution, and must conform their actions to its provisions. The Legislature could not say the witness shall testify, but could and did say, if he will, etc., and the courts can do nomore. This witness must determine for himself whether he will accept the legislative reward offered for his testimony. Whether the constitutional protection thrown around offenders is good or bad policy, is a question with which courts and Legislatures have no concern. They must support and enforce the Constitution as they find it. Being its creatures they must obey its mandates, and not evade them by strained construction for any emergency, however important to public weal it may seem.
"The language of both the Constitution and the statute is plain, simple and unambiguous. The one is positive in prohibitingcompulsion, the other simple in its offer of inducement and reward to an offender to betray his fellows by voluntary election to testify for the sake of protection to himself.
"At common law the rule is, that if an associate in crime will reveal upon his fellows and testify against parties to the same crime, he may reasonably hope the State will in consideration pardon his offense. It was a part of the rule, that the government was not bound to apply it. The object of the hope held out by that rule was to increase the means of discovery and punishing offenses.
"Our law-makers recognizing the utility of the rule, but seeing that it did not accomplish to any great extent the ends aimed at, modified it by converting a bare hope into an absolute assurance, making it a positive mandate instead of a discretion resting in the breasts of courts and attorneys-general. So that our statuteis nothing more than the common-law rule, made certain ofapplication.
"Under the common-law rule the offered witness could not becompelled to testify; then why should a different practice obtain under the same rule declared by statute in more direct and trustworthy terms under a Constitution protecting a witness from giving evidence against himself, while the common-law rule is untrammeled by Constitution except as it comes of usage and precedent?
"In State against Hatfield, Judge McKinney, with the statute before him for construction, says `such person [meaning a person before the grand jury by compulsion] can not be compelled to criminate himself, but as an inducement to a full and unrestrained disclosure in regard *580 to others without peril to himself it was deemed politic, in theevent of doing so, to exempt him from prosecution.'
"There can be no doubt as to the meaning of this language. It is susceptible of but one construction, which is, that compulsion was not intended, and that inducement was the sole object of the legislation."
Brown v. Walker is referred to in Brain v. U.S.,
The following are the Texas statutes that are involved in this question:
Article 729, C.C.P. "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."
Article 730, C.C.P. "When it is apparent that there is noevidence against a defendant in any case where he is jointly prosecuted with others, the jury may be directed to find a verdict as to such defendant, and, if they acquit, he may be introduced as a witness in the case."
Article 37, C.C.P. "The district or county attorney shall not dismiss a case unless he shall file a written statement with the papers in the case, setting out his reasons for such dismissal, which reasons shall be incorporated in the judgment of dismissal; and no case shall be dismissed without the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and sufficient to authorize such dismissal."
Article 572, C.C.P. "The only special pleas which can be heard for the defendant are:
"1. That he has been convicted legally, in a court of competent jurisdiction, upon the same accusation, after having been tried upon the merits for the same offense.
"2. That he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular."
None of these statutes says anything at all about immunity. The only immunity that exists in this State is by the judicial application of the law that where one agrees to turn State's evidence, and keeps his agreement, that he can not afterwards be prosecuted for the evidence he gives. That this was judicial amnesty there can be no doubt, but the rule had its origin under, and can be justified only by the former Constitution when the provision existed that the laws can not be suspended except "by the Legislature or its authority," which to a certain extent might probably be considered as allowing a shadowy implication that the Legislature might delegate that power to a limited extent. But since that clause has been eradicated, there is nopower of delegation whatever. But even under the holdings that where one agrees to turn State's evidence under promise of immunity he will be immuned, there is no holding whatever in any case, showing that immunity can be *581 thrust upon him without his consent. Every case of that character is based upon an agreement; and there can be no agreement when one of the parties to it is forced against his will; and as said by the various courts above quoted, especially in the case of Nachman (114 Fed. Rep., 995, 997), Foot v. Buchanan (113 Fed. Rep., 156, 161), U.S. v. Bell (81 Fed., 830, 850), Warner v. State (
In the majority opinion a quotation is made from Cyc. with approval, as follows: "The constitutional privilege of refusing to answer can not 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." This is in line with quoted cases. Some of the decisions cited in the majority opinion lay down the positive rule that the offense about which witnesses are called to testify must be obliterated and wiped out of existence before the court can compel their testimony. In the case of Cullen v. Commonwealth, quoted with approval by Justice Sherwood in his great opinion in Ex parte Carter, 66 S.W. Rep., 540, he uses the following language: "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 that indemnity."
In the case of State v. Jack, 76 Pac. Rep., 911, it was said, in reply to the contention that complete immunity had not been provided: "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." Judge Brooks in his dissenting opinion in the case of Ex parte Max Andrews, 51 Tex.Crim. Rep., while not agreeing with the majority opinion on some of the matters, referred approvingly to Judge Sherwood's opinion in Ex parte Carter. I quote from Judge Brooks' opinion: "If relator was exempt from prosecution by this statute, when compelled to give evidence against himself, he should have been required to testify. Of course, the exemption *582 must be absolute. Ex parte Carter, 66 S.W. Rep., 540." These authorities might be pursued indefinitely and almost without limit, holding that when the witness shall be immune, that theimmunity must be absolute and complete so far that he could notbe prosecuted for a violation of the statute or under the statute for the offense in which he gives his testimony against others. It may not be without the pale of judicial reasoning to say that wherever the witness is required to testify to incriminating facts by the statute, and that statute gives complete immunity so that he can not be prosecuted, he may be forced to testify. He may be then compelled to give evidence, but in no other case andunder no other circumstances can his testimony be compelled.
Under our statute which has been previously quoted in this dissenting opinion, wherein a witness may agree to testify and does testify truthfully in accordance with his contract, which contract, of course, must be ratified by the judge, he may claim his exemption from prosecution; but that is in every instance byagreement of the witness with the constituted authority authorized to make the agreement subject to approval of the court. This question came up for revision in the case of Cameron v. State, 32 Texas Crim. Rep., and it was there so held, but under all of the authorities this is not complete or absoluteimmunity. The immunity is dependent upon conditions andcircumstances which prevent it from being a complete immunity asunder statutory immunity or statutory amnesty. This is but anagreement, which may be broken by the witness. He may decline to
testify in the case, and if he does, he is not immune but may beprosecuted. This is so by all the authorities. He may testify untruthfully and be subject still to prosecution not only for the case in which he delivers the false testimony and in which he turns State's evidence, but also for the perjury committed on the trial of the case. This is not a novel rule in Texas, and in fact it is so in the cases cited in the majority opinion. It is deemed unnecessary to review or cite those cases. It is so in the elementary works. It is so wherever constitutional jurisprudence is known among our race — England and America. So that wherever the party agrees to testify, there is not complete immunity andcan not be immunity until after the witness has testified. See Greenhaw v. State, 41 Tex.Crim. Rep.; Gibson v. State,
There is another reason why the court can not, at request of State's attorney or otherwise, compel the accused to testify against his will, and that is, that the immunity granted to obtain testimony is in the nature of a pardon or amnesty, and no pardon or amnesty can be effective until voluntarily accepted by the person pardoned. This, in my investigation, is the universal rule, so far as it has been formally adjudicated in all the American courts. The case of Brown v. Walker, as quoted above, holds that legislative amnesty, in cases like this, is a pardon— or "general amnesty." The court also said, "it is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he can not longer set up his privilege, since he stands with respect to such offense as if it had never been committed" (citing many English cases), 161 U.S. at p. 599.
That a pardon must be accepted by the person in whose favor it is granted, and has no effect when not so accepted, is the holding in the following cases and authorities: Chief Justice Marshall, in U.S. v. Wilson, 7 Pet. (U.S. Sup. Ct.), 150, 29 Cyc., p. 1565, section 2; Rosson v. State, 23 Texas Crim. App., 287, 4 S.W. Rep., 897; Hunnicutt v. State, 18 Texas Crim. App., 498, 51 Am. Rep., 330; Ex parte Powell,
The rule last above stated applies to a conditional pardon as well as to an absolute one. Lee v. Murphy, 22 Gratt. (Va.), 789; 12 Am. Rep., 563, 24 Vol. Am. Eng. Law, 2nd ed., pp. 577-8.
In United States v. Wilson (7 Peters at p. 160), Chief Justice Marshall said: "A pardon is a deed, to the validity of which delivery is essential. It may then be rejected by the person towhom it is tendered; and if it be rejected, we have discovered nopower in a court to force it on him. It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors." This is the common law (see Hawkins b. 2, Ch. 37, section 59, where it is said: "But it is certain that a man may waive the benefit of a pardon under the great seal," etc.), and is the statutory and constitutional construction also of all American law. Marshall, Chief Justice, in the Wilson case cites case after case of waiver of pardon and shows that it can not be forced upon the beneficiary. *585
So far, in a general way, two phases of this matter have been discussed, and incidentally the third. The first is, immunity under a statute which requires the defendant to testify as in the anti-trust and corporation cases, and matters of that sort, in which he may be compelled to testify and be immune. Under this phase he would be immune whether he testified truthfully or falsely. He might be convicted of perjury, but not tried in the immune case in which he was compelled to testify in which he would incriminate himself. The second is by agreement and contract he makes with the State. The first is complete immunity; the second grants no immunity at all until after the contract hasbeen fully and fairly and truthfully performed. The third is the one at issue in this case. The majority opinion cited the cases under the two preceding questions as authority for the third. How this can be, I do not understand. In neither of the other cases is he compelled to give evidence against himself. In the first question put he is rendered immune by the Act of the Legislature, which suspends or repeals the Act so far as he is concerned, and, therefore, he can not be subject to punishment. He is granted complete and absolute immunity, and all prosecution against him is eliminated and barred by legislative authority. Enough has been said of that. In the second, he can only claim it, as before stated, under contract, which is conditional to be performed, and, therefore, there is no immunity, and can not be any immunityuntil after the matter has been fully adjudicated in court and hehas complied with his contract. Then in good faith he may insist upon being discharged and not prosecuted. It is a question of having his case dismissed because of the fact that he turned State's evidence, and the prosecution is not to be further carried on. The question here, however, is flatly, squarely and incisively put, that the district attorney, with the sanction of the district judge, can compel, without an agreement or withoutstatute, a witness to testify and incriminate himself. If there is anything that is squarely in the face of the constitutional inhibition, it is this holding. The Constitution provides that an accused shall not be compelled to give evidence against himself. My brethren put it on the ground that he is immune by order of the district court under agreement with the district attorney. But the witness has not agreed.
The Legislature has not sought to pass such legislation. That body of course could not suspend the Bill of Rights. It has not conferred, nor sought to confer any authority upon the District Court to render immune any defendant in any case in Texas and force him to testify. This is compulsion in the face of theorganic law and prohibition of the Bill of Rights. These matters have been referred to somewhat in previous portions of this dissent as being collated in Mr. Harris' excellent annotated Constitution. The Legislature, had it sought to do so, could not confer power upon the district judge to suspend any law in Texas. The Constitution, Bill of Rights, section 28, expressly inhibits the suspension of any law except by the Legislature itself. The Legislature, therefore, could not confer authority upon the district judge to suspend the laws *586 of this State, and in fact does not confer that authority upon any department of Texas government or any officer within its bounds. We have had recently a very thorough test of this matter in the cases of Snodgrass v. State, supra. Judge Harper wrote one of the original opinions and the writer of this dissent wrote the other in the Snodgrass cases. On rehearing Judge Harper wrote elaborately and strongly against the very proposition that is involved in this case, holding that in those cases the Legislature could not confer such power upon the district judge, either to suspend the law, or pardon the party convicted, and the Act of the Legislature was held unconstitutional. I cite Snodgrass cases as authority in point against the prevailing opinion in this case, and as supporting this dissent. If they do not do so, then I am at a loss to understand the propositions and principles announced in these cases. Authority to suspend sentence is legislative and not judicial. The court can not force upon or refuse such suspension. It can only be raised by the accused in sworn plea, and can then be determined only by the verdict of the jury. By that verdict the court is unalterably bound. Baker v. State, 158 S.W. Rep., 998. The Baker case is directly in point and positive authority against the majority opinion in the instant case as are the Snodgrass cases. I might elaborate this proposition by citing numerous cases in Texas and throughout the Federal Union, State and Federal, to the effect that no power can suspend a law in the State unless expressly authorized by the Constitution, and even under the Federal Constitution itself the Congress can not do it except in the instance of writ of habeas corpus under circumstances mentioned in the Federal Constitution. In Texas, however, the Bill of Rights expressly provides that the writ of habeas corpus in this State shall never be suspended. The Bill of Rights places that beyond the power of the Legislature. The Governor, Legislature and courts combined, if adhering to the provisions of the Constitution, can not set aside the writ of habeas corpus or suspend it. It might be entertaining and instructive to follow up these questions. Questions arose during the late civil war in Texas and the proposition was asserted that civil liberty dominated and was superior to military authority, even in the troublesome times of that great war. I say without fear of any contradiction that there can not be found a well considered case where it has been held that the court can suspend a law in Texas and compel a witness to testify against himself, and that the Legislature of Texas has never sought to confer any such authority upon any tribunal in Texas since the amendment of the Bill of Rights in 1874. Back of that, is the suspension of the laws in Texas in the Reconstruction times, when the troublesome days immediately followed, that serve today as a blot upon our civilization and jurisprudence. This instant case, perhaps, has gone further than any case of which I have any knowledge in the history of our jurisprudence. If the court can compel witnesses to incriminate themselves, and testify against themselves, at its will and pleasure, then the question may well be asked, what guarantee have the *587 people of this State of their constitutional rights or the safety of themselves under the inhibitions contained in the Bill of Rights which they sought to accord themselves in their freedom?
I have written perhaps more than is necessary, and more than ought to be necessary, but this is such a wide departure from our law, and, as I view it, such an overturning of the fundamental law itself, that I have felt I should write what I have written, and call attention to the fact that no opinion has been written, in my judgment, that is so far-reaching in results and so contradictory to all law, constitutional, statutory and judicial, as in this case.
Believing that my brethren have not realized the extent to which they have gone and the error into which they have fallen, I have written so that attention may be called sharply to the prevailing opinion in this case and its effect, and with the hope that it may not be followed.
Discussing the above matters, except incidentally, I have not mentioned there are expressions in the opinion of the majority in the Napoleon case, supra, which were not called for and are but obiter dictum. There are many other reasons, in my judgment, why the majority opinion is wrong, but I have already written beyond what I intended or even what might be necessary.
In closing this dissent I wish to acknowledge my indebtedness to and great appreciation of the masterful and exhaustive argument of Messrs. Martin Zimmermann, L.C. Penry and A.L. Love, attorneys for applicant. My investigation of the questions involved has been greatly aided by their brief and argument. They have shown great ability, painstaking research and consummate skill in treating the questions presented for revision. The reporter will report their argument on motion for rehearing as fully as the rules will permit.
Addendum
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 then 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 J.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 case of Heinzman v. State, 34 Tex.Crim. Rep., 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. Hisprotection 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 1st Bish. Crim. Proc., secs. 1164, 1165; Rex v. Lee, Russ. R., 361; Rex v. Brunton, id., 454; The People v. Whipple, 9 Cow., 707. This has always been the rule in this court, and was specifically enforced in the case of Young v. State, 45 Tex.Crim. Rep., 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 can not understand how we made that mistake, and devotes considerable space to 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 having 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 Texas Crim. App., 324, 11 S.W. Rep., 376. In the testimony of District Attorney Mayfield will be found the following expression: "I don't think *560 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 case 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 U.S. 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,
Relator, in his brief, cites two cases laying down the following rule: "In the case of Cullen v. Commonwealth, 24 Grat., 624, quoted with approval by Justice Sherwood in the well considered case of Ex parte Carter,
"The case of State v. Jack, 76 Pac. Rep., 911, 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 totestify, 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 demands 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 Criminal 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 instances. Why is he compelled to testify in the first instance mentioned? Because no prosecution *562 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 formal 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 as 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. Rep., 162, 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 Snodgrass 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 if 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,
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 cases 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 Cameron and other cases cited in the original opinion. The Legislature, the law-making 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 and 790, White's Ann. Code of Procedure, and cases in sections 787 and 556, subdivision 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.
Overruled.
