Ex Parte Napoleon , 65 Tex. Crim. 307 ( 1912 )

I concur with my brethren in discharging applicant from custody. I can not, however, agree with the proposition announced by them, that the State may guarantee immunity from prosecution as a basis of forcing the citizen to criminate himself, or compelling him to testify against others in matters in which he is criminally liable. The Constitution, article 1, section 10, expressly inhibits such compulsion.

The cases of Ex parte Park, 37 Tex.Crim. Rep., and Ex parte Wilson, 39 Tex.Crim. Rep., do not sustain the majority opinion. The Park case expressly holds that a witness can not be required to answer questions incriminating himself, and discharged the applicant from custody. The Wilson case is as fully emphatic in the holding as is the Park case. The applicant was discharged in that case. In the Park case, supra, after quoting article 709, White's Code of Criminal Procedure, it is said: "This would seem to imply the power on the part of the State to dismiss a case against a defendant, and require his testimony. Of course, such dismissal must be with the guaranty to the witness on the part of the court against any other or further prosecution for the same offense; and this statute has been so construed. See Camron v. State, 32 Tex.Crim. Rep.; Neeley v. State, 27 Texas Crim. App., 324; Fleming v. State, 28 Texas Crim. App., 234."

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. Neeley v. State, 27 Texas Crim. App., 324; Nicks v. State,40 Tex. Crim. 1; Ex parte Park v. State, 37 Tex.Crim. Rep.; Stevens v. State, 42 Tex.Crim. Rep.. The State may hold the indictment against him until he has complied with the agreement. Ex parte Greenhaw, 41 Tex.Crim. Rep., and other cases cited, supra. In the Camron case, 32 Tex.Crim. Rep., an agreement made with the prosecution was required to be fulfilled. It was further held that where the State has made such agreement and the witness has complied with its terms, he is entitled to immunity. But in no case has it been held that the witness can be compelled to testify to any fact which would incriminate him. He may agree to do so, and if he fails or refuses, he may be prosecuted as if he had not entered into such agreement.

With the constitutional inhibition and guaranty that he shall not be compelled to give evidence against himself, it is not readily to be comprehended how it is to be held that the State can force the witness to testify against himself even by agreeing not to prosecute. The witness may testify if he chooses, but it is a matter within his discreton to be controlled by him and not by the prosecuting officers. The citizenship of this State do not hold their guaranteed and reserved rights at the option or dictation of prosecuting officers. That there should be no question in regard to the sacredness of these rights, it was ordained in article 1, section 29, that "to guard against transgressions of the high powers herein delegated, we declare that everything in this ``Bill of Rights' is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void."

This would seem to be sufficiently plain, emphatic and inhibitive to let it be known that we have reserved to ourselves these rights and placed them beyond usurpation by any or all departments of government.