Griffin v. State

Appellant was convicted of gaming, and fined $10.

The charging part of the indictment is as follows: "Did then and there unlawfully play at a game with cards in a public place, to wit, a gaming house." The motion to quash on the ground of insufficiency is not well taken. Thorp v. State, 42 Tex. Crim. 231.

The first bill of exceptions is reserved to the refusal of the court to permit appellant to prove by himself and other witnesses that he was summoned before the grand jury and testified in regard to this transaction, and gave information and testimony in regard to violations of the gaming laws, and especially this particular occurrence, in which game defendant himself engaged. The State's objection to the introduction of this testimony was that the grand jurors were not permitted to testify as to the transaction and this evidence before that body. The court explains this bill by stating that the witnesses Floyd and Rogers on preliminary examination by the State testified that at the time defendant was before the grand jury the indictment herein had been returned, and the State's attorney admitted that at the time defendant testified before the grand jury he had not been arrested in this case, and knew nothing of the indictment against him. The objection urged by the State's attorney should have been overruled. Wisdom v. State, 42 Tex.Crim. Rep.; Penal Code, art. 391. This article provides: "Any court, officer or tribunal having jurisdiction of the offenses enumerated in this chapter or any district or county attorney may subpoena persons and compel their attendance as witnesses to testify as to violations of any of the provisions of the foregoing articles. Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify and for any offenses enumerated in this chapter a conviction may be had upon the unsupported evidence of an accomplice or participant." Kain v. State, 16 Texas Crim. App., 282; Day v. State, 27 Texas Crim. App., 143; Wright v. State, 23 Texas Crim. App., 313. And it would make no difference whether the grand jury had returned the bill or was simply examining into the transaction. If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the State, it exonerates the witness whose testimony is used by virtue of the terms of the statute. Nor does it make any difference at what stage of the investigation or trial the evidence of the participant is used. The grand jury may not have been satisfied that the evidence upon which the bill was returned was sufficient to justify a conviction, but, if they had been, still, under the terms of the law, the use of the testimony of one of the participants exonerates him from prosecution. In cases where indictments have been returned, and one of the indicted parties is used as a witness for the State, this would exonerate, even though he be one of the indicted parties. Article 391, supra, was enacted for the purpose of forcing witnesses to testify in behalf of the State. He can not plead that rule of evidence which does not permit a witness to incriminate himself, because when he testifies he is exonerated from punishment, and the incriminating testimony can never be used against him. The mere fact that the participant is required to testify for the State exonerates him from punishment, and it is wholly immaterial whether it is before the arrest of himself or any of the parties, or subsequent to their arrest. See authorities supra. This testimony should have been admitted; and if, as contended, he was used by the grand jury as a witness in the examination of the case then upon trial, and gave testimony in behalf of the State, as he offered to prove, appellant is entitled to his discharge.

The judgment is reversed, and the cause remanded.

Reversed and remanded.