Ex Parte Greenhaw

It appears from the record that the applicant made an agreement with N.B. Morris, representing the State of Texas, which was ratified by the district attorney, to testify against his codefendants in three certain criminal cases, in which the parties were charged with murder in the first degree, the applicant himself being implicated in said cases as a principal. Applicant admits that he is guilty of murder in the first degree on proof evident, but claims he is entitled to bail by virtue of his agreement with the State. The evidence tends to show that by the terms of his agreement he was to receive immunity from punishment in all said cases, and that pending the disposition of the same he was to be allowed bail in a reasonable time. It is further shown that the appellant has testified fully and fairly in the examining trial of his codefendant, and also in the habeas corpus proceeding; and it is insisted by him that the reasonable time contemplated by his contract with the State has transpired. I think the following propositions of law on this subject have received the support of adjudicated cases, and may be considered established.

1. It has been a settled law in this State for a number of years that a defendant could, with the consent of the State, turn State's evidence; that is, become a witness against his codefendants in the same crime, and, as a consideration therefor, receive immunity from punishment. Bowden v. State, 1 Texas Crim. App., 137; Hardin v. State, 12 Texas Crim. App., 186. At common law the rule appears to be that, where such an agreement is made, the court does not extend this immunity, but after conviction the accomplice receives a pardon. This is not a matter of right, but is equitable only, and is conditioned upon his making a full disclosure of his own guilt and that of his associates, 1 Am. and Eng. Enc. of Law (New Ed.), p. 407, and notes; Rice on Ev., p. 519; United States v. Ford, 99 U.S. 594, 25 L.Ed., 399. In this State it was not definitely settled how this immunity should be granted, whether by courts or the pardoning power, until the well-considered case of Cameron v. State, 32 Texas Criminal Reports, 180. In that case it was held that the question should be presented to the court by plea in abatement, and on hearing, if the court was satisfied that the plea was true, he would order a nolle prosequi or dismissal of the case against the accomplice testifying.

2. There is some diversity of opinion as to where the power to make the agreement is lodged. In some jurisdictions the prosecuting officer has this power; but in such case, as the general rule, where he exercises this authority, it is invested in him by statute. In most jurisdictions the agreement must be made or at least ratified by the court. 1 Am. and Eng. Enc. of Law, p. 397. In our own State this matter is regulated by statute, and the court alone is authorized to make the contract. Code Crim. Proc., arts. 37, 630, 709; Fleming v. State, 28 Texas Crim. App., 236; Kelly v. State, 36 Tex.Crim. Rep.; Maeyers v. State (Texas Crim. App.), 49 S.W. Rep., 381; Turney v. State, 40 Tex.Crim. Rep.; Tullis v. State, ante, p. 87.

3. I can find no case in which the question has been directly presented as to the terms of this character of contract. I think, however, it may be fairly deduced from the authorities that the State or sovereign can contract with the accomplice upon the following terms only; In consideration that he shall testify fully and fairly as to all he knows in regard to the guilt of his associates in the particular case in which the contract is made, that he will receive immunity from punishment as to such case. Where the immunity is granted by pardon, as in England, the pardon was extended in the particular case, and necessarily did not include incidental matters in regard to that case. Rice on Ev., p. 519; 2 Bish. Crim. Proc., sec. 116, et seq.; Rex v. Beardon, 7 Car. P., 497. In the latter case it was held that the accomplice witness was not entitled to bail pending the disposition of the case against his principal. This is the nearest case in point which I have been able to find. In our own State it is held that the contract can not embrace immunity in other cases. Heinzman v. State, 34 Tex.Crim. Rep.; Tullis v. State, ante, p. 87.

4. Again it is agreed that there must be a compliance with the terms of the contract on the part of the accomplice before he can claim immunity. This appears to be supported by all the authorities. Neeley v. State, 27 Texas Crim. App., 328; United States v. Hinz (C.C.), 35 Fed. Rep., 272; Commonwealth v. Knapp, 10 Pick., 477. So it follows, if the accomplice testifies corruptly or falsely, he can not claim immunity. This would appear to be in harmony with the proposition that this immunity from punishment is not to be extended until after the accomplice has testified. As I understand applicant's contention, he insists that the prosecuting officers representing the State have the right to make a contract with the accomplice, granting him, in consideration of his testimony in the particular case, immunity from punishment in that case, without any interposition or approval of the contract on the part of the court or judge; and, furthermore, that this contract of immunity from punishment embraces everything incidental to that particular case, including the right to bail in a non-bailable case, or the dismissal of such case, prior to the final disposition of the case in which the accomplice is to testify. I can not regard either of said propositions as sound. As we have seen, in regard to the first proposition, the rule is firmly established in this State that no such contract can be made without the approval of the judge trying the case; and it necessarily follows that any contract made with out the consent or approval of the judge is without authority of law. In this particular case, as I understand it, there is no pretense that either the justice of the peace who presided at the examining trial or the judge who presided on habeas corpus trial knew, when applicant testified, that it had been stipulated as a part of the consideration to accrue to applicant that he was to be granted bail pending the final disposition of the case in which he was to testify. So, if it be conceded that such a stipulation was made between the district attorney, representing the State, and appellant, it was not ratified by the judge, and was not obligatory and binding upon the State. Moreover, if such an agreement to permit applicant to have bail pending the disposition of the cases in which he was to testify had been made by the proper authorities, such a contract was ultra vires, and without authority of law. The right of an accused person to contract for immunity from punishment does not embrace other matters, though they may appertain to the particular case. If the contract could embrace one incident, it could include other provisions; and thus not only might a party claim the right to bail, but he might make and enforce a contract for the absolute dismissal of the case against him as a condition precedent to his testifying against his codefendant. Immunity from punishment was never intended to announce such a proposition. It simply apprehends immunity from punishment in the particular case; and in England and in most of the States this immunity from punishment is only extended by a pardon, after the witness has fully and fairly testified in the particular case against his codefendants. Here, as we have seen, an accomplice is not driven to an executive pardon, but is protected by the court itself, which authorizes a dismissal or nolle prosequi of the case. This dismissal is after such accomplice has fully and fairly testified against his codefendants, and he can not be said to have fully performed his contract until the final disposition of the case against his codefendant. His contract is a continuous one, and he has no right under it until he has finally testified in the case. So the question of applicant's reasonable compliance with his contract can not arise until the final trial of his codefendants, as it can not be known until then whether or not he will fulfill his obligation to testify. He may, at any time before the final trial, refuse to testify against his codefendant, or testify falsely; and under all the authorities, when he makes a breach of the contract, he is no longer entitled to immunity from punishment under it. If the rule were otherwise in a capital case such as this, applicant might contract for bail, or even for the dismissal of the case against him, to be extended before the final trial of his codefendant; and he might abscond, or he might attend, and refuse to testify, or testify falsely; and, in either event, he would have the State at a disadvantage. Viewing the question from every standpoint, it occurs to me that the rule which confines a contract between the State and an accomplice to the simple proposition that the State will accord the accomplice immunity from punishment after he has fully and truly testified in the final trial is a safe and sound one. Nor can the applicant complain in this case that he is undergoing a hardship and punishment by being confined in jail pending the final disposition of the case against his codefendants. The consideration, so far as he is concerned, is both ample and humane, as, by the terms of the contract, after he has fully complied with it, the State agrees to turn him loose, and let him go free, although, according to his own confession, he is guilty of murder in the first degree, and ought to be hanged.

December 5, 1899.