Ex Parte Muncy , 72 Tex. Crim. 541 ( 1913 )

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 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, 161 U.S. 591, and cases there cited, and cited in the original opinion. Appellant cites us also to the case of Holmes v. State, 20 Texas Crim. App., 509, as sustaining his contention, and argues that the law is correctly enunciated in that case. Appellant ought to remember that the opinion in the Holmes case was contrary to all the opinions rendered by this court and the Supreme Court prior to that time, and shortly after it was rendered it was overruled in the case of Camron v. State, 32 Tex.Crim. Rep., and the rule announced in the Camron case has been consistently followed in this State since its rendition. And in that case it was specifically held that under our Code of Criminal Procedure, the district judge and district attorney were authorized to grant and give complete immunity from punishment. For a further discussion of the question, and the authorities relied on so holding, we refer to that case, and the cases cited in the original opinion.

Relator, in his brief, cites two cases laying down the following rule: "In the case of Cullen v. Commonwealth, 24 Grat., 624, quoted with approval by Justice Sherwood in the well considered case of Ex parte Carter, 66 S.W. 540, the following language is used: ``That nothing short of complete amnesty to the witness and absolute wiping out of the offense as to him, so that he could no longer be prosecuted for it, would furnish indemnity.'

"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 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,70 Tex. Crim. 618, 158 S.W. Rep., 998.) In that case it was held the Legislature had the authority and power beforeconviction to, in effect, authorize the giving or granting of pardon. Under our Constitution the power to pardon granted to the Governor is to pardon after conviction. The line of authority in the Legislature to give to others the authority to pardon, grant reprieves, amnesty, etc., must there be drawn, and there is no limitation on the Legislature before conviction, otherwise all laws which provide that a person may be called to testify, but shall not thereafter be prosecuted, would be void, and this relator concedes is not true, for he concedes that Floyd v. State, 7 Tex. 215, correctly lays down the law. He says, "The Floyd case lays down the obviously correct rule that where an acquittal is had or the offense barred by the statute of limitation (both statutory modes for the obliteration of offenses) that the witness can not claim his constitutional privilege of silence. To this class also belong the Griffin, Taylor, Kain and Elliott cases, cited by Judge Harper, they being all gaming cases, where the immunity statutes protect the witness. The cases cited from other States, and from the Supreme Court of the United States, in the latter part of the majority opinion, are without exception cases arising under immunity statutes, mostly anti-trust cases where the courts hold, as do the Texas courts, that the witness is amply protected. We concede the correctness of all these decisions. The Legislature may provide the immunity of a witness because it has the sole right to define crime, and the very fact that every State in the Union from which the majority cites cases has seen fit to pass general immunity statutes, pertaining to certain offenses, argue very strongly that none of these statutes recognize the courts as having inherent power to grant immunity, else why such statutes."

We did not hold in the original opinion, nor do we now hold that the courts have inherent power to grant immunity. In fact we agree with relator that they have not this inherent power, but whatever authority they have or exercise in this matter must arise and be given them by laws enacted by the Legislature, and all the decisions quoted in the original opinion show that this authority and power as exercised by the courts of this State is under specific statutory provisions. A reading of those 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.