*1 injuries upon Mrs. Booth and inflicted extent of the to show the they do trial. This her at the to account for absence witness, the same while he was inquiring other witness. injured showing party was to In the absence conscious, ques- knowledge prosecution and that faith, appears. no error tion was asked bad finding jury The evidence is sufficient to sustain the support appellant’s claim and to ver- of self-defense appears. error dict and reversible judgment affirmed.
Louis Ferrantello v. State. 25,818. No. October 1952. Rehearing February Denied 1953. Rehearing Motion Second Denied (Without Opinion) Written 1953. April 22, *2 Shelton, Looney, Polk Moorhead, Meyer's, Clark & C. J. Looney Everett L. R. Moorhead, Austin, Deem and appellant. Daniel, Atty. Price Texas, Proctor, County of Jr., Gen. Les C. Atty., Hugh County, Travis Lyerly, W. Atty. Asst. Gen. Attorney, Austin, for Blackburn, Texas, George W. State’s the state.
MORRISON, Judge. 5429a, Ann. Vernon’s Article
The offense violation of Statutes; confinement punishment, months’ twelve Civil jail $1,000. a fine of Crime subpoenaed appear 52nd
Investigating Representatives, of the House of Committee He did Legislature Texas, 2, 1951. on June State being sworn, an appear and, prior tendered the committee setting indict- then under affidavit forth that he was the fact operating ment in at for the offense the district court Dallas gambling a granted and the further fact that he had been house judge
immunity by said district court. *3 being ques- sworn, appellant After asked several the was book-making tions, among being, you them busi- “Are the book-making you anybody ness?” and “Do know else in the appellant questions, refused to business?” These and other the grounds on him. the incriminate that his answers reply indicted It is for this failure to by grand jury County. of Travis appellant’s attempt points
We shall discuss the raised to grounded upon upon able counsel. His first attack the statute is caption apprise the contention mem- thereof did legislature body public of bers and fact that Act, granted immunity thereof, particularly of the and Section 3 transaction, thing prosecution any from “for con- matter or cerning truthfully caption contains this which he testified”. The phrase, “providing privilege for 3 reads of witnesses”. Section as follows: testify fact, privileged any
“No witness or is to refuse to to produce any paper, respecting to which he shall be examined Legislature, by any either House of or committee of House, upon ground testimony either to such fact that his production disgrace paper may or his of such him tend or Any person otherwise upon render him infamous. called tes- tify give testimony upon any produce papers or matter or to inquiry under of either either House or the Committee Legislature Houses, House of or Joint Committe of both give testify, testimony upon produce papers refuses who or inquiry ground testimony matter under that his production papers him, or the would incriminate or tend him, required testify incriminate shall nevertheless and be produce papers, objections required, but when so over his forth, subject person for the reasons set such above shall not be prosecution to thing concerning any transactions, indictment or matter or truthfully produces testified or evi-
which dence, documentary or otherwise.” light sufficiency must caption test the in the III,
Section Constitution, reads, Article of our State which part, as follows: * * * “No subject, bill shall contain more than which one expressed shall be in its title.” underlying requirement
The reason this constitutional deception that fraud legislation and in the enactment of is made likely caption, less only part often by busy read legislature, fully bill apprises members of the members of the contents the bill itself. authority
There is question, no dearth of on have this we reviewed elementary them with the above reason in mind. It is caption to observe that complete need not be as bill itself.
Members lawyers, need not a matter knowledge many then, common What, are not. *4 “privilege” does average the word pos- mean the man who qualifications sesses legislator? of a Webster defines it to grant special mean: a right immunity. a or of It must construing be in mind borne that we are here not a legislature word of art which employ has in seen fit to a are, rather, statute testing but whether the members of the legislature, fact, as a caption matter of had notice from the body of provided the bill itself one were called aas witness before either thereof, house or a committee should privilege refusing have the testify but, of lieu in thereof, granted statutory immunity. should be great many A by authorities texts have been cited both parties, equally general many expressions may lengthen found. To discuss them would opinion. but this
475 one. number against appellant’s contention findWe unconstitutional the Act is contention that second (Section 15 Texas of fact that the Constitution on the based III) provides: Article during ses- imprisonment, its may punish, by “Each House disorderly member, disrespectful sions, any or person not a proceed- obstructing any of its presence, in its or for conduct ings; time, not, at one provided imprisonment such shall forty-eight exceed hours.” maximum provides for the Article 5429a
while Section penalty assessed in this case. Youngblood, Tex. upon parte reliance had Ex Great legislature R. held that the
Cr. 251 S. W. wherein we powerless punishment forth in set the maximum raise the Constitution of Texas. Youngblood case The fundamental distinction between assessing identity
and the case at bar of the tribunal lies sought Youngblood case, legislature punishment. In the impose punishment, at court in the case bar the while following jury punishment a trial a verdict of the set refusing questions pro- for the offense of to answer substantive legislative pounded committee. Legislature power
“The of this state to make a penal permission act Constitution not limited to the specifically except forbidden and exists in all cases where State, 668. of that instrument.” 227 S. terms Reeves W. power enact hold it within the to be prose- creating a law involved in this the substantive offense placing jurisdiction cution and for its enforcement court, than proper judicial rather tribunal. It follows legislature, punishment, 15 of assesses the and Section application. III Article of the Texas Constitution has no gained Appellant’s third he would not have contention is that pending Dallas prosecution him in from the him, propounded if he because had answered the *5 question in of the act unconstitutional as an invasion is, government. judicial functions of the of the That branch that, acquired he contends once the at district court Dallas part any of the appellant, effort jurisdiction on over futile, grant immunity legislature because would be him powers of of the constitute a violation of the division would government of our Texas Article II set forth in Section appellant way, contends in another Stated Constitution. jurisdiction upon an encroachment would be such try pending on its docket. court to the case reasoning appeals natural desires to the govern- guard prerogatives judge branch of of his greater ment, power Texas Con- no than the but we can assert grant right im- grants The of a district court us. stitution munity statutory and constitutional. constitutional 3 of Article 5429a does not affect the
Secion ap- jurisdiction of the district court but would have pellant, truthfully had he answered Committee’s case, pending incriminated himself in connection with the interposed upon trial of a defense which he have such case. parte Miers, (2d)
In Ex 124 Tex. Cr. R. 64 S. W. said, granting immunity con- we “If restricted to viction, Constitution, statute is not obnoxious there infringement being pardoning power.” of the minds, acquired jurisdiction To our the fact that a court has pendency virtue of of an alter indictment therein does not general anywise power rule or limit the provision charged. to make of the one remember, passing It is for the courts wise concerning they question legislature, power might, illustration, cite a fanciful meet tomorrow and abol- ish offense of murder and that act constitu- such would be tional. power before the courts is the legislature and not the wisdom of its acts.
Appellant’s fourth in- contention evidence is support sufficient to the conviction in that the state failed quorum the committee was session and present questioned. was at the time The witness Meredith testified that the House Inves- Crime tigating hearing had a Court Crimi- Committee the Texas *6 appellant, 2, 1951, that the Appeals on June nal courtroom committee. appeared a that subpoena, in before answer no there was disposes appellant’s contention that of This in proof the committee was session. that proof that Appellant’s that there was no second contention actually attendance at in quorum a was committee refused propounded he questions moment the were him presents problem. to answer a more difficult States, Supreme v. of the United Christoffel The S., Court 1826, conviction of reversed a U. 338 U. S. 93 L. Ed. quorum presence a perjury question of a where alleged testimony have at the time the false was Committee on the trial. been was raised for the first time question No was raised in trial of this case presence quorum Appellant raise of a committee. seeks contending question appeal, this proof the first time on that prove that, is insufficient in that did not at state questioned, quorum present. time he was a based, part, upon The Christoffel an act of case was Congress providing recommendation that measure or shall reported majority from a unless com- committee actually present. comparable mittee was We are aware of no Texas statute. holding may, line, think, herein,
Be that as it our we with holding Supreme Court in U. of the United States S. Bryan, subpoenaed 339 U. S. 94 L. that one Ed. appear before a committee of the must raise presence quorum appears of a committee; failing and, so, said court consider to do this will showing that a constituted was in session committee prima proof quorum present. facie of the committee was Appellant’s fifth contention insufficient is that the evidence is “required” because the state failed to committee his answer after he had asserted privilege. facts, following quotation from the statement of think, we answers this contention: “Q. you anyone, Ferrantello, Do know Mr. who in the book-
making business in A. I the state Texas? refuse to grounds
that, sir, on the incriminate me. “Q. going you to insist answer that The Committee I question. A. refuse.
“Q. you The Committee directs to answer as to whether or anyone you do know in the state of who is in Texas book-making that, I business. A. refuse to answer sir.” insuf- sixth contention is that the evidence is *7 questions pro- ficient because the state failed to the by pounded by Mr. Meredith were authorized the committee. proof session, shows that the committee was in that Mr. chairman, questioned Meredith was its and that Mr. Meredith hardly necessary the witness. We think it for each member of pro- the committee to dictate into the record his assent employed. cedure eighth in- seventh and are that the contentions charge
dictment is insufficient to the offense for which he was is, says, agree, convicted. That and we that Article 5429a separate creates two offenses: willfully making by failing any way
1. The to default respond summons, the to and produce questions
2. The refusal to documents or answer having responded after to the summons. light this,
In indictment, the he contends that which reads, part, follows, wilfully as “did then and make there refusing by default questions” duplicitous to answer insufficient.
We must phrase determine the sense in “make which the default” used in the indictment. given meaning
If appear it be of failure to compliance summons, appellant’s committee in with the then If, contention must be sustained and the indictment must fall. hand, generic on the describing other it is used as a term manner which the committed offense here charged; i.e., questions, may the refusal to answer then it given ordinary interpretation usage; i.e., in common perform legal duty, failure to obviously feel we pleader. intent of the interpretation, Given such the indictment legal would read willfully “did then and perform there fail duty by refusing questions”. And, reading thusly, subject appellant’s complaint. indictment is not 650, (2d) State, 390, 154 W. In Bell v. 142 Tex. Cr. R. S. (2d) State, Spencer 142 Tex. Cr. R. S. W. a term in which had an informations we occasion to consider meaning which, defined was used its technical statute, the information would have rendered one clause of There, repugnant been we held the term have another. generic gave meaning and, thus, intended used in its sense pleader. There, bar, minds as in the no doubt in our case at there was charge clearly apprised at the the defendant bar the accusation him. P. Article C. C.
Appellant’s ninth contention is insuffi- the evidence is jury’s finding cient to warrant the refusal to answer was willful. Appellant allegation concedes that an the refusal willfully necessary charge answer was done is not the offense that, but allege, asserts since the indictment did so then proven. same must be *8 willfully an act ordinarily Whether is done is not the sub- ject proof, of direct but it is a state of mind of accused jury may
which the find from the evidence as a whole. con-We clude from the record before us that it was here authorized to find that the refusal was willful. nothing
There is in the record under oath that estab- appellant’s lishes claim in made this court he refused to that answer propounded to him advice of counsel. We cannot consider a side bar remark of counsel as evidence. not, therefore, doWe consider that the us. before Appellant’s tenth contention is that the evidence insuf- ficient because the state questions pro- failed to pounded pertinent to him were inquiry being con- then by ducted the committee.
The creating resolution Investigating Committee, the Crime introduced in bar, evidence in the case at same recited being came into purpose conducting sweeping “for the in- vestigation reports organized of the in criminal activities Texas, the State of and the enforcement of the criminal laws of this State local officials.” purpose hear- of the Meredith testified witness obtaining purpose ing “for the was held on June bookmaking Texas.” testimony or racket in business on book-making you busi- questions, “Are in the think We book-making anybody busi- you in the ?” and “Do know else ness inquiry. pertinent ness?” were in- evidence is eleventh contention is charged answer refusal is the sufficient because the offense oath, refusal, under questions, proof while while the shows the questions. to answer ap- subpoenaed
The record shows that appear, pear committee, that he was did that he sworn, propounded great questions” and that “the bulk asked, question was were not answered. At the time each him grounds replied on answer the witness that he refused to might him. to do so incriminate juncture proceedings appellant offer to At no did the per- questions propounded if be being ques- mitted sworn. feel that such to do so without presented in the trial court order tion should have been properly accord find raised this court. We ourselves Josephson, Appeals Court of U. S. with Circuit “Consequently (2d) appellant, it said: Fed. cited illusory we need not fact at best and this so-called issue of alone have violated decide whether a refusal to be sworn would the statute.”
Finding error, judgment court of the trial no reversible is affirmed. appellant’s rehearing.
ON motion for Judge. WOODLEY,
Appellant argues does 3 of Art. 5429a V.A.C.S. Sec. against things: (a) deprives privilege a his two witness of self-incrimination, immunity from (b) him an it affords “pro- caption prosecution. Upon' theory he contends that the this viding give privilege notice of for of witness” is insufficient to “privilege” purposes, regardless word both of whether be meaning. argues technical or non-technical He granted caption immunity, such be notice that the witness is
481 against privilege self-incrimina- there notice that his then is no away. tion is taken right against possessed self-incrimi- of his The witness was right taken could not be This
nation under the constitution. substituting by statutory other than from him enactment immunity. therefor absolute provides for 3 of the act in
Sec. questions would tend required which who is witness to incriminate him.
Immunity supplants the constitutional thus arises out of speak by re- privilege moving an of the witness not to about offense required guilt his as to the which he offense speak. reasoning original opinion
Under the in our we think that give caption provision im- the munity is sufficient to notice of this right privilege. in lieu of his constitutional or legislature being deprive power the witness without privilege against of his with- constitutional self-incrimination agree providing immunity stead, out its we cannot Sec. things. doing separate 3 act should be construed two as The first would ineffectual be without other.
Further, gives immunity the statute to the witness questions required by com- he mittee, as or answers and it under such circumstances has been said that giving could not then himself and the con- evidence provision stitutional application. would have as to self-incrimination Muncy, 29; parte
Ex 72 Tex. R. 163 S. W. Cr. parte Copeland, 314; Ex 91 Tex. R. Griffin Cr. S.W. State, 43 Tex. R. Cr. 782. S.W. having alleged
It is next contended that the indictment many pertinent questions propounded were inquiry, it was incumbent the state to that each questions pertinent. and all of the were single containing do not indictment construe the
allegation collectively, questions pertinency as to alleging but questions pertinent. rather as that each of the Therefore, proof of refusal to answer
482 suffice, pertinent or and it is immaterial that one were would questions may pertinent. more not have been regarding referring testimony were in error in advice of counsel A as “side-bar remark”. re-examination appellant’s the record Meredith discloses Mr. testified every question practically counsel advised him not to answer asked. by appellant appear an ac
Authorities cited
to hold that
may
justification,
element
cused
show
is an
when willfulness
sought
good
crime, by proving
honestly
faith
that he
and in
fully
lawyer
might
lawfully do,
advice of a
and
as to what he
honestly
counsel,
and in
laid all of the
before his
facts
good
believing
advice, relying upon
faith followed such
it and
correct,
intending
only
He
to
lawful.
that his acts shall be
223;
Murdock,
cites United
54
States v.
290 U.S.
S.Ct.
163;
States,
Williamson v. United
28
Town
207 U.S.
S.Ct.
States,
send v. United
If because of the willful the refusal was applicable, here, these authorities are Town- nevertheless as in States, supra, nothing send v. United there in the record sought good appellant honestly indicate that and in advice faith lawfully do; counsel as to what he that he submitted attorney stated, to his required or true facts as rule honestly upon believing advice, he acted it to be counsel’s intending refusing testify. only correct and lawfully act States, following The rule is announced in v. United Sinclair 279 U.S. L. 73 Ed. 692: gist ques-
“The pertinent of the offense is refusal turpitude tions. No moral Intentional violation involved. guilt. sufficient misapprehension as constitute no There was to what was called for. refusal answer was deliberate. The sought law, pertinent facts were a matter of Sec. appellant’s rightly duty made it to answer. He was bound to construe the statute. His mistaken view of the law is defense.”
Appellant granted next contends Sec. 3 of Art. 5429a insuffi- V.A.C.S. is and therefore conditional supplant privilege cient his be- self-incrimination “truthfully.” requires testify cause it that *11 holding statutory upon a Reliance is had the authorities against prose- immunity enactment must afford absolute future relates, question wit- the offense or the cution for to which testify. compelled ness cannot be recognized announced the Su-
This court has
this rule
547,
preme
Hitchcock,
142 U.S.
12 S.Ct.
Court
Counselman v.
541,
195,
parte Muncy,
We do not understand that the use of the word immunity. requires results in a conditional law answers truthful, of the witness under oath to the statutes as- giving immunity sume truthful. will be Douglas State, In v. Tex. Cr. R. 269 S.W.
Judge construing P.C., Morrow in Art. 694 said: wording plain
“The of the statute makes it it was in- violating tended that one accused traffic the laws intoxicating liquors testify facts, be called truthfully offense, but with discloses his connection prosecution he is immune from . . .” Messenger State, 465,198
See also
81 Tex.
R.Cr.
S.W. 330.
gave incriminating
We think the fact that a witness
answers
required
immunity
would suffice to establish
and the bur-
den would be on the state to
he did
truth-
show that
not answer
fully.
appears
It
legislature
to be well settled that the
is vested with
authority
V.A.C.S.,
to enact a statute such as Art. 5429a
re-
quiring a
answer,
witness to answer a
but for
granted
act,
the witness
would tend to
Walker,
incriminate him.
Brown v.
parte
Ex
U.S.
Muncy,