Ex Parte Park
40 S.W. 300
Tex. Crim. App.
1897
Check Treatment
HENDERSON, Judge.

This is an original proceeding on a writ of habeas corpus, granted by this court. The record shows that C. F. Champion, W. P. Johnson, and C. B. Park (this relator) were jointly indicted on a charge of ke- ping for sale, offering for sale, and selling, tickets and part tickets in a lottery to onе Dr. J. B. Smoot, and were, on trial in the County Court of Dallas County. After the parties had gone to trial, the case was dismissed as to C. B. Park, relator; and he was placed on the stand by the State as a witness. The County Attorney propounded to said witness the following question: “Do you knоw-of your own knowledge whether or not any lottery tickets were kept for-sale, offered for sale, or sold, at the ‘Lucky Corner’ on or about the 10th day of February of this ‍​‌‌‌​‌‌​‌​​‌​​‌​‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌​‌​​‌‌​​‌​​‍year?” The witness declined to answer said question, on the ground that a truthful answer to the same would tend tо incriminate him of an offense against the laws of this State. Thereupon the court held that he was bound to answer said question, and on his refusal to do so, the judge remanded him to the custody of the sheriff of Dallas County until such time as he should answer said question. The applicant sued out a writ of habeas corpus, which was granted by this court. It was further shown before said court, and as a part of the record in this case, that said relator, C. B. Park, had been convicted within the past ten days in said court in about a half-dozen cases for keeрing for sale, offering for sale, and selling, lottery tickets at the Lucky Corner, *594 and that there are now pending about twenty-five other oases against him for having and keeping for sale, offering for sale, and selling, lottery tickets at said Lucky Corner, in Dallas County, and that said last-mеntioned cases now stand for trial in said court. It was further made a part of the record that said Park had acted as the agent of his codefendants at said Lucky Corner. The question is thus presented as to whether or not, on this state of case, the County Judge was authorized —that is, had the power—to treat the refusal of the witness to answer said question as a contempt of court, and to punish him therefor by confinement in the county jail until such time as he should agree to testify and answer said question. Our Constitution (see, Bill of Rights, § 10), among other things, prоvides “that a defendant shall not be compelled to give evidence against himself.” The statutes provide that prosecutions may be dismissed against defendants, the County or District Attorney filing written reasons therefor, which shall be embodied in the judgment. See, Code Crim. Proc., 1895, Arts. 37, 030. 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 statutе has been so construed. See, Camron v. State, 32 Tex. Crim. Rep., 180; Neeley v. State, 27 Tex. Crim. App., 327; Fleming v. State, 28 Tex. Crim. App., 234. It has, however, been held that this authority or power extends only to the particular case then on trial, but not to any other distinct offense. See, Heinzman v. State, 34 Tex. Crim. Rep., 76; Moseley v. State, 35 Tex. Crim. Rep., 211. Conceding that the dismissal against the relator of the case then on trial, and requiring him to testify, was a guaranty on the part of the court that he should be no further prosecuted for said offense, the issue is then presented: Was the question of such a character, under the conditions then surrounding the defendant, as to other offenses of like character then pending against him, as would tend to criminate him as to said offenses? We hold that this matter is, in the first instance, to be determined by the cоurt or judge; that is, “it must appear to the court from the character of the question and the other facts adduced in the case that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime. The liability must appear reasonable to the court, or the witness will be compelled to answer.” See, Ex parte Irvine, 74 Fed. Rep., 954, which is an exhaustive discussion of this question, and the authorities there cited; Fries v. Brugler, 12 N. J. Law, 79, reported in 21 Amer. Decs., 52, and note thereto on page 57; Pеople v. Mather, 4 Wend., 229, reported in 21 Amer. Decs., 122, and authorities ‍​‌‌‌​‌‌​‌​​‌​​‌​‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌​‌​​‌‌​​‌​​‍cited in note thereto. We quote *595 from Whar. Crim. Ev., § 460, as follows: “To protect the witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. The witness, as will be seen, is not the exclusive judge as to whether he is entitled on this ground to refuse to answer. The question is for the discretion of the judge, and, in exercising this discretion, he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. But, in any view, the danger to be apprehended must be real, with reference to the probable operаtion of law in the ordinary course of things, and not merely speculative, having reference to some remote and unlikely contingency.” Mr. Wharton further says (section 469): “The witness is not the sole judge of his liability. The liability must appear reasonable to the ‍​‌‌‌​‌‌​‌​​‌​​‌​‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌​‌​​‌‌​​‌​​‍court, or the witness will be compelled to answer. Thus, a witness may be compelled to answer as to conditions which he shares with many others, though not as to conditions which would bring the crime in inculpatory nearness to himself. But, in order to claim the protection of the court, the witness is nоt required to disclose all the facts, as this would defeat the object for which he claims protection. It is not, indeed, enough for the witness to say that the answer will criminate him. It must appear to the court, from all the circumstances, that there is a real danger, thоugh this the judge, as we have seen, is allowed to gather from the whole ease, as well as from his general conception of the relations of the witness. Upon the facts thus developed, it is the province of the court to determine whether a direct answеr to a question may criminate.” And see authorities cited in notes to said sections. This rule has been followed in this State. See, Floyd v. State, 1 Texas, 215. After the court has determined from the environments and the nature of the ease, so far as stated, that the answer of the witnеss might tend to criminate him, it is then the province of the witness to state whether or not a truthful answer to the question asked would tend to criminate him. See authorities, supra. It is contended by the Assistant Attorney-General that the answer to the question asked, to-wit: “Do you know of your own knоwledge whether or not any lottery tickets were kept for sale, offered for sale, or sold, at the ‘Lucky Corner,’ on or about the 10th of February of this year?” would require only a simpel answer of “Yes” or “No,” and that this ‍​‌‌‌​‌‌​‌​​‌​​‌​‌​​‌​‌‌‌‌‌‌‌​‌‌​​​‌‌‌​‌​​‌‌​​‌​​‍could not possibly tend to criminate the witness in any offеnse for selling lottery tickets at said Lucky Corner. In answer to this, it may be stated that the record discloses that the relator was a clerk of his codefendants at said Lucky Corner, evidently for the sale of lottery tickets; and, in the other cases pending, the fact of knоwledge on his part that lottery tickets were sold at .said Lucky Corner might constitute an important element or essential link in the chain of circumstances to convict him of said other offenses. Concede, however, that it would not have this tendency, yet the witness having been placed on the stand by the State, and this testimony having *596 been elicited from him by the prosecution, it would not be possible for the State to interfere and prevent a cross-examination of the witnesses upon this testimony, even though the prosecution had not рressed the investigation further with said witness. Assuming that the witness would state, in answer to said question, that he knew of the sale of lottery tickets at said place (and it must be assumed, else the State wmuld not have offered it, that the fact that this witness knew of such sales was material for the Stаte), then an obvious inquiry on the part of the defense on cross-examination would be as to the means of knowledge on the part of the witness that lottery tickets were sold at said corner; that is, how he knew the fact. If he knew it from his presence there at the time, this would place him in close contact with the offense of selling lottery tickets, and if the cross-examination was pressed still further, and he answered that he knew of such sales because he made them, then it would bring him in direct contact with the offense, and could be proved, in a trial for such other offense, by the confession of the witness. Under the authorities, as we understand them, the objection of privilege—that is, that the answer to the question would tend to criminate him—must be made at the threshold. He cannot wait and answer a part, and then refuse to answer other questions legitimate to a cross-examination. If he voluntarily states a part of the testimony, he waives his right, and cannot afterwards stand on his privilege. If it were otherwise, he might give in testimony hurtful to a defendant, but refuse to be cross-examined аs to matters which might be to defendant’s benefit. See, Rap. Wit., § 269; Whar. Crim. Ev., § 470; State v. Blake, 25 Me., 350; Com. v. Price, 10 Gray, 472; People v. Freshour, 55 Cal., 375; Connors v. People, 50 N. Y., 240; State v. K., 4 N. H., 562. The latter case, of State v. K., is so much to the point that we quote the opinion in full. K. was indicted for unlawfully breaking and entering a public burial place, and taking up and сarrying away the body of a person who had been there interred. On the trial, the defendant called a witness, who stated that he knew defendant to be innocent, but that he could not state how he knew that without implicating himself, and he inquired of the court whether or not he wаs bound to testify at all, and if bound to testify, how far he was compelled to go. The court used the following language: “The witness is not to be compelled to answer any question if the answer will tend to expose him to a criminal charge; but, if he state a particular fact in favor of the respondent, he will be bound on his cross-examination to state all of the circumstances relating to that fact, although in doing so he may expose himself to a criminal charge. We shall not compel the witness to state that he knows the respоndent to be innocent if a full account of his knowledge on that subject will tend to furnish evidence against himself. But, if he testifies to that fact, we shall permit the Attorney-General to inquire how the witness knows that fact, and compel him to answer the question. It is clearly inadmissible to permit a witness to give a partial account of his knowledge of the transaction, sup *597 pressing other of the circumstances, whether the evidence is to be used in favor of or against the State.” We believe the facts as stated in the record disclose a case where the answer of the witness—that is, taking it for granted that he should answer “Yes,” that he knew of such sales might tend to criminate him in other cases then pending against him. Certainly, a cross-examination would involve the means of knowledge on the part of the witness as tо the sale of lottery tickets at said Lucky Corner; and this means of knowledge, if it was personal on the part of the relator, it occurs to us, would or might constitute important testimony against him in the trial of said other causes. We are impressed with the delicate pоsition in which a trial judge is placed in a matter of this sort, having a desire, on the one hand, to protect the rights and privileges of the individual witness, and, on the other, having a due regard for the right of the community to have the wheels of justice unclogged as far as may be consistent with the liberty of the individual. Sometimes it may be difficult to discern the dividing line, but in all such cases we believe the doubt should be solved in favor of the liberty of the citizen. However, in this case it does not occur to us that there is any . question of doubt as to the privilege exercised by the witness. We have stated above that the court decided, in the first instance, whether the answer would criminate the witness. We have also stated that the witness could not decide this question. If the witness were permitted to decide the question, the ends of justice would frequеntly be defeated. If the decision of the court be conclusive, then the witness might be deprived of a constitutional right. We are therefore of opinion that the rule is that it is the duty of the witness to object if he desires to protect himself. It is the duty of the court then to rule upon his objections, and, if the court should rule that the answer would not criminate him, the correctness of the ruling of the court is to be tested, not only by the question, but by all of the surrounding facts; and if it should appear that the surrounding facts, taken in connection with the question asked, show that the court’s decision was wrong, upon habeas coipus the action of the court can be revised. And, in support of these propositions, we refer to the ease of Holman v. Mayor, 34 Texas, 668, and authorities there cited. It is accordingly ordered that the relator be discharged, and- that he pay the costs of this court, and that a copy of this judgment be certified to the County Court of Dallas County for observance.

Relator Discharged.