Ex Parte Muncy

DAVIDSON, Judge

(dissenting.)—In dissenting I do not care to make a statement of the facts. While I am not agreeing fully as to the scope of the statement in the opinion by Judge Harper, yet so far as the dissenting- views that I express are concerned, I have not considered it very material as to whether the proffered immunity from punishment

*564

or prosecution on the part of the district attorney and the district judge relates only to this' particular homicide, or whether it includes all connected crimes, or alleged connected crimes. The proposition on which I base this dissent is, that it makes no difference how broad the proffer of immunity might be, that it is without the power of the district attorney or district judge, either or both, to grant absolute immunity from punishment. It seems that the leading case cited by Judge Harper, and upon which he perhaps mainly bases his opinion, is Brown v. Walker, 161 U. S., 591 ; at least it is cited as authority to uphold the majority opinion as found in his original opinion and in the opinion on rehearing. An inspection of that case shows it was rendered by a divided court, four of the members dissenting. Those who dissented were present Chief Justice White of that august tribunal, and Justices Field, Gray and Shiras. That ease then became the law merely by a majority of one member of the court. The explanations, differentiations and modifications of that case which have since taken place, have greatly weakened the majority opinion, and lessen its scope of operation from the great extent to which it was at first supposed to operate. However, as that case is the leading one upholding the right to force a witness to testify where there is complete statutory immunity, and as it was regarded by’the dissenting judges to be in direct conflict with the case of Counselman v. Hitchcock, 142 U. S., 547 , it requires some special consideration as to its meaning and extent. The prevailing opinion in that case contains, inter alia, the following observations:

“The maxim

nemo teneiur seipsum acensare

had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and—until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power—was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high—in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to brow-beat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier State trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it "has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a

*565

denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.” ( 161 U. S., 596 .)

. . . “The Act of Congress in question securing to witnesses immunity from prosecution, is virtually an Act of general amnesty, and belongs to a class of legislation which is not uncommon either in England (2 Taylor on Evidence, Section 1455, where a large number of similar acts are collated) or in this country. Although the Constitution vested in the President ‘power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,' this power has never been held to take from Congress the power to pass acts of general amnesty, and is ordinarily exercised in cases of individuals after conviction, although as was said by that court in Ex parte Garland, 4 Wall., 333 : ‘It extends to every offense known to the law and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency or after conviction and judgment.’” ( 161 U. S., 601 .)

Quoting with approval a California case and a Tennessee case, the prevailing opinion continues: “In such a case he is not compelled to give evidence which may be used against himself in any criminal case, for the reason that the Legislature has declared that there can be no criminal case against him which the evidence which he gives may tend to establish. In Hirsch v. State, 67 Tenn., 89 , the same construction was given to a similar statute in Tennessee, which exempted witnesses from prosecution for offenses as to which they had given testimony before the grand jury, the court holding that this was ‘an abrogation of the offense’; that the witness could neither be accused by another, nor could he accuse himself, and, therefore, he could not criminate himself by such testimony. It is but just to say, however, that in Warner v. State, 81 Tenn., 52 , the same statute was construed as merely offering a

reward to a witness for waiving

his constitutional privilege, and not as

compelling

him to answer.” ( 161 U. S., at page 604 .)

“It is entirely true that the statute does not purport, nor is it possible for any statute, to shield the witness from the personal disgrace or opprobrium attaching to the exposure of his crime; but, as we have observed, the authorities are numerous, and very nearly uniform, to the effect that if the proposed testimony is material to the issue on trial, the fact that the testimony may tend to degrade the witness in public estimation, does not exempt him from the duty of disclosure.” (Id., p. 605.)

The court then proceeds to hold that the Act of Congress, since it provided complete immunity from the witness being “prosecuted or subjected to any penalty or forfeiture, for or on account of any transaction, matter or thing concerning which he may testify, or produce evidence documentary or otherwise,” that the Fifth Amendment to the Federal Constitution had no application to the case, as he was not

*566

thus made a witness against himself to the extent of causing self-incrimination.

In the dissenting opinion in that case Justices Shiras, Gray and White (present Chief Justice of the United States), quoting from the leading case of Counselman v. Hitchcock, 142 U. S., 547, 562 , said: “It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard. 142 U. S., 547 .” ( 161 U. S., at p. 618 .) The dissent continuing, shows that the prevailing opinion in the case is in direct conflict with Counselman v. Hitchcock, supra. The dissent, speaking of the immunity statute of Congress, continues: “It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property in a criminal proceeding in such court. It could not prevent the obtaining and use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted when otherwise, and if he had refused to answer, he could not possibly have been convicted.” (161 U. S., p. 619.) Quoting again: “As already said, the very fact that the founders of our institutions, by making the immunity an express provision of the Constitution, disclosed an intention to protect it from legislative attack, creates a presumption against

any

Act professing to dispense with the constitutional privilege.” (Id., p. 621.)

“It is certainly speaking within bounds to say that the effect of the provision in question, as a protection to the witness, is purely conjectural. Ho court can foresee all the results and consequences that may follow from enforcing this law in any given case. It is quite certain that the witness is compelled to testify against himself. Can any court be certain that a sure and sufficient substitute for the constitutional immunity has been supplied by this Act; and if there be room for reasonable doubt, is not the conclusion an obvious and necessary one?

“It is worthy of observation that opposite views of the validity of this provision have been expressed in the only two cases in which the question has arisen in the Circuit Court—one, in the case of the United States v. James, 60 Fed. Rep., 257, where the Act was held void; the other, the present case. In most of the cases cited, wherein State courts have passed upon analogous questions, and have upheld the sufficiency of a statute dispensing with the constitutional immunity, there have been dissenting judges.

“A final observation, which ought not to be necessary, but which seem to be called for by the tenor of some of the arguments that have

*567

been pressed on the court, is that the constitutional privilege was intended as a shield for the innocent as well as for the guilty. A moment’s thought will show that a perfectly innocent person may expose himself to accusation, and even condemnation, by being compelled to disclose facts and circumstances known only to himself, but which, when once disclosed, he may be entirely unable to explain as consistent with innocence.

“But surely no apology for the Constitution, as it exists, is called for. The task of the courts is performed if the Constitution is sustained in its entirety, in its letter and spirit.” (Id., 627, 628.)

Justice Field, also dissenting in the case, among other things, observed: “The citizen can not be denied the protection of absolute silence which he may invoke, not only with reference to the offense charged, but with respect to any Act of criminality which may be suggested. ( 161 U. S., 631 .)

“The constitutional guarantee is not fully secured by simply exempting the witness from prosecution for the designated offense involved in his answer as a witness. It extends to exemption from not only prosecution for the offense under consideration but from prosecution for any offense to which the testimony produced may lead.

“The witness is entitled to the shield of absolute silence respecting either. It thus exempts him from prosecution beyond the protection conferred by the Act of Congress. It exempts him where the statute might subject him to self-incrimination.

“The amendment also protects him from all compulsory testimony which would expose him to infamy and disgrace, though the facts disclosed might not lead to a criminal prosecution. It is contended, indeed, that it was not the object of the constitutional safeguard to protect the witness against infamy and disgrace. It is urged that its sole purpose was to protect him against incriminating testimony with reference to the offense under prosecution. But I do not agree that such limited protection was all that was secured. As stated by counsel of the appellant, 'it is entirely possible, and certainly not impossible, that the framers of the Constitution reasoned that in bestowing upon witnesses in criminal cases the privilege of silence when in danger of self-incrimination, they would at the same tune save him in all such cases from the shame and infamy of confessing disgraceful crimes and thus preserve to him some measure of self-respect. . . .’ It is true, as counsel observes, that 'both the safeguard of the Constitution and the common law rule spring alike from that sentiment of personal self-respect, liberty, independence and dignity which has inhabited the breasts of English speaking peoples for centuries, and to save which they have always been ready to sacrifice many governmental facilities and .conveniences. In scarcely anything has that sentiment been more manifest than in the abhorrence felt at the legal compulsion upon witnesses to make concessions which must cover the witness with lasting shame and leave him degraded both in his own eyes and those of others. What can

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be more abhorrent . . . than to compel a man who has fought his way from obscurity to dignity and honor to reveal crimes of which he had repented and of which the world was ignorant ?’ ”

“This court has declared, as stated, that 'no attempted substitute for the constitutional safeguard is sufficient unless it is a complete substitute.’ Such is not the nature and effect of this statute' of Congress under consideration.' A witness, as observed by counsel, called upon to testify to something which will incriminate him, claims the benefit of the safeguard; he is told that the statute fully protects him against prosecution for his crime; ‘but,’ he says, fit leaves me covered with infamy and unable to associate with my fellows’; he is then told that under the rule of the common law he would not have been protected against mere infamy, and that the constitutional provision does not assume to protect against infamy alone, and that it should not be supposed that its object was to’ protect against infamy even when associated with crime. But he answers:

‘I

am not claiming any common law privilege, but this particular constitutional safeguard. What its purpose was, does not matter. It saves me from infamy, and you furnish me with no equivalent, unless by such equivalent I am equally saved from infamy.’ And it is very justly urged that

‘a

statute is not full equivalent under which a witness may be compelled to cover himself with the infamy of a. crime, even though he may be armed with a protection against its merely penal consequences.’ ” (Id., 631 to 633.)

“Every one is protected by the common law from compulsory incrimination of himself. This protection is a part of that general security which the common law affords against defamation, that is, against malicious and false imputations upon one’s character, as it defends 'against injurious assaults upon one’s person, even though the defamation is created by publication made by himself under compulsion. The defamation arising from self-incrimination may be equally injurious as if originating from the maliciousness of others. The reprobation of compulsory self-incrimination is an established doctrine of our civilized society. As stated by appellant’s counsel, it is the 'result of the long struggle between the opposing forces of the spirit of individual liberty on the one hand and the collective power of the State on the other.’ As such, it should be condemned with great earnestness.

“The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to every one, and needs no illustration. It is plain to every person who gives the subject a moment’s thought.

“A sense of personal degradation in being compelled to incriminate one’s self must create a feeling of abhorrence in the community at its attempted enforcement.

“The counsel of the appellant justly observes on this subject, as on many of the proceedings taken to escape from the enforcement of the constitutional and legal protection, established to guard a citizen from' any unnecessary restraints upon his person, action or speech, that 'the proud sense of personal independence which is the basis of the most

*569

valued qualities of a free citizen is sustained and cultivated by the consciousness that there are limits which even the State can not pass in tearing open the secrets of his bosom. The limit which the law carefully assigns to the power to make searches and seizures proceeds from the same source.'

“The doctrine condemning attempts at self-incrimination is declared in numerous cases. Starkie, in his treatise on Evidence, observes that the rule forbidding such incrimination is based upon two grounds, one of policy and one of humanity, ‘of policy because it would force a witness under a strong temptation to commit perjury, and of humanity because it would be to extort a confession by duress, every species and description of which the law abhors.' (Am. ed., pp. 40, 41.)

“But there is another and' conclusive reason against the statute of Congress. It undertakes, in effect, to grant a pardon in certain cases to offenders against the law, that is, on condition that they will give full answers to certain interrogatories propounded. It declares that the alleged offender shall not be punished for his offense upon his compliance with a certain condition. The legal exemption of an individual from the punishment which the law prescribes for the crime he has committed is a pardon, by whatever name the Act may be termed. And a pardon is an Act of grace which is, so far as relates to offenders against the United States, the sole prerogative of the President to grant.”

“In Ex parte Garland, 4 Wall., 333 , this court, after stating that the Constitution provides that the President shall have power to grant reprieves and pardons for offenders against the United States, except in cases of impeachment, says: . . . ‘This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him can not be affected by any legislative restrictions.'

“Congress can not grant a pardon. That is an act of grace which can only be performed by the President. The constitutional privilege invoked by the appellant should have had full effect, and its influence should not have been weakened in any respect by the statute which attempted to exercise a prerogative solely possessed by the President.” ( 161 U. S., 636 to 638.)

After collating the authorities and discussing the principles involved therein, the United States Supreme Court in U. S. v. Ford, 99 U. S., 994 , expressly decided that the power to grant immunity was lodged in the pardoning power only, and such is the rule recognized by the overwhelming weight of authority. These quotations are given to show that it has never been recognized that the judicial department of the government had the inherent right to grant immunity, for such a right belonged only to the executive department of the government by the exercise of its pardoning power, or to the legislative department by providing that upon the happening of certain contingencies no offense existed, as in our gaming statute.

*570

Brown v. Walker was a case which treated of a statute which declared complete immunity to a witness from prosecution on account of any matter brought out in an examination before a grand jury investigation of violations of the Interstate Commerce Act. It is undoubtedly true that many decisions can be found requiring a disclosure of matters that would incriminate the witness, were it not for

statutory acts completely immuning

him not merely from punishment but

also from any act of prosecution,

and

any step toward prosecution.

An indictment found under such circumstances would be a nullity as soon as the defendant should show to the court that the crime charged was one concerning which he had given testimony in a judicial proceeding in which such statutory immunity existed. In such case and upon such showing, the defendant would not even be put to trial before a jury if the question was raised by proper procedure before a trial, and the court fully shown the fact of such testimony and immunity. But statutory immunity and judicio-administrative immunity are two vastly different matters. Statutory immunity virtually repeals the law creating the crime under the particular state of facts, or, to put it in technical form, the law defining the offense is restricted in its application so as to prevent there being an offense under a given state of facts in which the immunity is declared to exist. That this is true is apparent from even the prevailing opinion in the instant case as shown by the expressions of Judge Harper. It is there and elsewhere said that the “offense is wiped out,” and that the witness “stands with respect thereto, as if it had never been committed.” See Brown v. Walker, 161 U. S., 591 . That the courts can not exercise a pardoning power is shown by the recent decision of this court, one opinion having been rendered by Judge Harper and the other by the writer. See Snodgrass v. State, 150 S. W. Rep., 162 and 178. That the administrative office of county or district attorney has never had a pardoning power conferred upon it will hardly be gainsaid by any one. That the Legislature has never conferred upon either the court or the State’s attorney, or both, the power to suspend the laws or grant an amnesty or a pardon in a murder ease, is admitted on all sides. Nor could such power be conferred by the Legislature so long as article 1, section 28, of our State Constitution exists. Indeed, in the case at bar, there has been an attempt to

thrust

upon applicant,

against his

will, and over his solemn protest an immunity which is not provided for by any statute. It is safe to say that no case can be found anywhere in America or England since 1688 in which a court and the State’s attorney can, in the absence of statute, thrust upon a witness immunity and compel him to waive his constitutional right to remain silent when his answers would incriminate him. The statute of this State

supposed

to

allow

a

bargain

or

agreement

between State’s attorney and the defendant as to turning State’s evidence against colleagues in crime

necessarily requires

the

assent

of the

ac

cused, and no case to the contrary can be found, unless it is the obiter

*571

dictum in the recent case of Napoleon v. State, 65 Texas Crim. Rep., 307 , 144 S. W. Rep., 269 .

The statute allowing the dismissal of a case against one defendant and providing that he can then be called as a witness was passed merely for the purpose of making him a qualified witness, for, under our law, where there are several persons accused of the same crime, they were not and are not competent witnesses for each other; and this statute was passed merely for the purpose of making one or more of the accused persons competent witnesses. When so rendered competent, the witness is like any other witness, subject to the same right and duties. His right to refuse to incriminate himself is the same as that of any other witness, and there is no statute which by its language takes away such right. And

no statute which fails to create complete immunity could lawfully be passed, and this is exactly what was held in the prevailing opinion in Brown v. Walker, supra.

That

complete immunity is not guaranteed when a case is dismissed and the dismissed defendant is called to testify under the dismissal statute above referred to

(C. C. P., Art. 729) appears from the decisions of Moseley v. State, 35 Texas Crim. Rep., 210 ; Nicks v. State, 40 Texas Crim. Rep., 1 , and cases there cited, where it is held that the immunity involved in such dismissal (under Rev. C. C. P., of 1911, arts. 729, 37 and 572, paragraph 2) pertains to the particular case only which is dismissed, and not to any other distinct offense. This immunity is not equivalent to that required by the case of Brown v. Walker, where the act of Congress stated that “no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any

transaction, matter or thing concerning which he may testify or produce evidence,

documentary or otherwise, before said commission.”

To revert to the difference between judicio-administrative and statutory amnesty, it must be observed that to allow the former without statutory enactment would be to allow the

court and State’s attorney to suspend the law, in direct violation of art. 1, sec. 28, Texas Constitution,

which says: “No power of suspending laws in this State shall be exercised except by the Legislature.” (See 'Harris’ Ann. Const., p. 208.) This section was adopted since 1869, to-wit: January 24, 1874. Gammel’s Laws of Texas, vol. 8, bottom pages 235-237, and was made to supersede the old section existing from 1845, which was in the same words as the present, except that the words “or its authority” followed the word “Legislature.” This former addendum “or its authority” was cut out of the Constitution by amendment of 1874, thereby

excluding the idea that the Legislature could delegate this authority either to the courts or any other officer or tribunal.

Not only does it exclude such idea, but it is a

positive inhibition.

The

very object and intent of that amendment was to prevent a delegation of the power,

which delegation had worked woeful results, especially in the “Reconstruction” days. The following quotation from Harris’ Texas Constitution annotated, p. 211, makes this very clear:

“(15) Act of Thirtieth Legislature, known as ‘wife and child

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abandonment law,' and which gives the trial judge the power of suspending the operation of the law, contravenes this section and is unconstitutional. Ex parte Smythe, 56 Texas Crim. Rep., 375 , 120 S. W. Rep., 200 ; Burch v. State, 56 Texas Crim. Rep., 200 , 120 S. W. Rep., 206 ; Phillips v. State, 56 Texas Crim. Rep., 220 , 120 S. W. Rep., 207 ; Adams v. State, 56 Texas Crim. Rep., 199 , 120 S. W. Rep., 208 ; McFarlin v. State, 123 S. W. Rep., 133 .

“(17) City charter can not authorize city to set apart a portion of the city where lewd women may ply their vocation, in contravention of the statute law of the State. McDonald v. Denton, 132 S. W. Rep., 823 , 135 S. W. Rep., 1148 . See also Brown Cracker Co. v. Dallas, 104 Texas 290 , 137 S. W. Rep., 342 ; Burton v. Dupree, 46 S. W. Rep., 272 . (See Harris’ Annotated Const., p. 209, for collated cases.)

“(18) The Legislature alone has the power of suspending the operation of general laws, and, in exercising the power, must make the suspension general, and can not suspend general laws for individual cases or for particular localities, nor delegate authority to a city to suspend certain laws of the State as to certain individuals in certain localities. McDonald v. Denton, 132 S. W. Rep., 823 , 135 S. W. Rep., 1148 .” Arroyo v. State, 69 S. W. Rep., 503 .

This question received consideration in the case of Ex parte Smythe, 56 Texas Crim. Rep., 375 , 120 S. W. Rep., 200 , in which case this court held the wife abandonment law unconstitutional because it authorized the court to suspend punishment in violation of said section 28 of the Bill of Rights.

Again, such a power vested in our courts to thrust immunity upon a witness and hold him under indictment pending the giving of his testimony would deprive a citizen of his constitutional right to a speedy public trial. This exact question has also been recently before the court, and in the case of Waldon v. State, 50 Texas Crim. Rep., 512 , 98 S. W. Rep., 848 , it was held that the acts of the Twenty-eighth Legislature suspending prosecution in a seduction case for two years upon certain conditions was unconstitutional, because it deprived the defendant of a speedy public trial. The immunity, if any, was conditional, not absolute nor complete from prosecution.

If the principles of the Greenhaw case are inapplicable to this case, then the majority opinion as shown above is absolutely without any authority whatever to sustain its view, and if this ease is applicable and justifies the opinion of the majority, it removes the very foundation stones upon which the civil liberty of the citizens of Texas now rests. The

majority concede that unless relator is protected from prosecution he must he

discharged,

yet they cite a decision as sustaining them which expressly holds that the granting of immunity by the court does not protect the relator from indictment nor imprisonment.

To my mind the distinction between this case and some cases cited in the majority opinion .upon this phase of the question is obvious. In this case there can be a valid indictment and legal imprisonment. In the cases under the

*573

immunity statute there could be neither, as a defendant could resort to the method of habeas corpus for his release if he were protected by the immunity statute which had obliterated the offense as to him before he had testified, but in this case he is absolutely without any remedy to obtain a speedy public trial or to obtain his discharge in case of arrest, or even bail if it were a capital offense. This exact question has been before the courts of other States, and it has been uniformly held so far as a most painstaking investigation by me has shown that

the power to thrust immunity upon a witness against his consent and compel his testimony where such testimony implicates him in a

crime,

had never been lodged or vested in the judicial department of the government.

The question of the right of the court to grant immunity came up for consideration by a Virginia court, in the case of Temple v. Commonwealth, 75 Va., 892 , and the

right

in that case

was absolutely denied.

The court in disposing of the matter uses in part the following language: “Ho implied suggestions by the court, nor any implied or positive promise by the Commonwealth’s attorney, could operate as an-indemnity to the witness that he would not be further prosecuted. He had a right to stand upon his constitutional privileges and not to trust to the chances of a further prosecution. The court of course,

could offer him no indemnity.

... He has a right to stand upon his constitutional privilege and to remain silent whenever any question is asked him, the answer to which may tend to incriminate himself.”

Upon this subject of the power of suspension of the law there was bitter contest, judicial and otherwise, in England for many years, until after the revolution of 1688, which put an end to the idea that there could be a suspension except by the power of Parliament, which in that country has all of the residuum of power. When the Federal Constitution of the United States was formed, the history of this subject was before our people, and in that instrument the power to suspend the laws was given to no officer or tribunal, except in one instance, and that is that the writ of habeas corpus can be suspended “when in case of rebellion or invasion the public safety may require it.” The department or tribunal that is to suspend the writ (or law) was not fixed by the Constitution but left an open question. In the historical ease of Ex parte Bollman and Swartwout ( 4 Cranch, 75, 100 ), involving the commitment of the petitioners on a charge of treason for having.plotted to levy war against the United States in the Aaron Burr conspiracy, Chief Justice Marshall, on the subject of suspension of the writ of habeas corpus, said: “If at any time the public safety should require the suspension of the powers vested by this [Federal habeas corpus] act in the courts of the United States, it is for the

Legislature

to say so. That question depends on political considerations on which the

Legislature

is to decide. Until the

legislative

will be expressed, this court can only see its duty and

must obey the law."

(4 Cranch, loc. cit., 100.) From the time of this observation by Marshall, Chief Justice, in 1807, down through the Dorr Rebellion case (Luther & Borden, 7 Howard, U. S.

*574

Sup. Ct., 1), decided by Taney, Chief Justice, and on down to the case of Merryman (Taney’s Rep., p. 246), also decided by Taney, Chief Justice, and on through the host of various cases arising from the War Between the States (which are collated in a valuable note in 45 L. R. A., p. 832, and additional cases found in the note to the 12th Law-Edition of the Reports of the U. S. Sup. Ct., 581), and including the renowned and celebrated decision and opinion of Mr. Justice Davis in Milligan’s case in 1866 (4 Wallace, U. S. Sup. Ct., pp. 1-124, 125, 126, 128, 131), and also as held by Joseph Storey in his great work on the Federal Constitution, it has been held, until this case at bar, that where there is power to suspend the law, and that power is not expressly conferred on any particular officer or department, that the

legislative power alone,

or the legislative power in conjunction with the executive, is the only situs of such power. But our Constitution (art. 1, sec. 28), puts this matter beyond cavil, question or dispute. In Milligan’s, case the learned justice in commenting on suspension of laws and habeas corpus said: “The proposition is this: 'that in time of war the commander of an armed force . . . has power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to his will; and in the exercise of his lawful authority can not be restrained except by his superior officer, or the President of the United States. ... If our fathers had failed to provide for just such contingency, they would have been false to the trust imposed on them. . . . They knew . . . that unlimited power, wherever lodged, at such a time, was especially hazardous to freemen. For this and other equally weighty reasons they secured the inheritance they fought to maintain by incorporating in a written Constitution the safeguards which time has proved were essential to its preservation.

Not one

of these safeguards can the President, or Congress, or the judiciary, disturb,

except the one

concerning the writ of habeas corpus. It is essential to the safety of every government that, in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. . . . They [our forefathers in forming the Constitution] limited the suspension of

one

great right, and left

the rest

to remain inviolable.” ( 4 Wall., p. 124, 325, 126 .)

Again, concerning power to suspend laws, he says: “The Virginia Assembly [in colonial times] also denounced a similar measure on the part of Governor Dunmore 'as an assumed power, which the King himself can not exercise, because it annuls the law of the land, and introduces the most execrable of all systems, martial law.’”

It matters not whether the suspension of law is only in one instance,, or in one class of cases, or extends to the numerous evils of martial law, in order for such an act to be violative of our Constitution; for, in the course of time, with gradual, unobserved and piecemeal encroachments, the one will beget the other.

That the Virginia Assembly as quoted above in its view that the King:

*575

could not suspend the laws, and that Parliament alone could suspend them, was uncontrovertably correct, see 1 Blackstone Coin., pp. 136, 233, 234, 235, 236, 238, 239, 250, 251, 252, 262. That Congress alone,' with the co-operation of the President, has power to suspend only the privilege of the writ of habeas corpus, and not other rights or laws, see Johnson v. Duncan, 3 Martin (La.), 530, and the note in same case in 6 Am. Dec., p. 690, 675. In this last case reference is made to the Bollman and Swartwout case, and Chief Justice Marshall is quoted as hereinabove set forth, to the effect, that the

legislative department alone

can suspend the laws where they are authorized to be suspended, and which authorization applies only to privilege of habeas corpus, and not to other laws, or rights. The Constitution of Louisiana at that time was in the exact words of our own Constitution as it existed prior to the amendment of 1874, ours having been copied from Louisiana.

I quote from the able brief of the applicant’s counsel, as expressive of my legal and philosophical sentiments, as follows:

“In the case of Johnson v. Duncan, 6 Am. Dec., p. 675, the court says: ‘The power of repealing a law and that of suspending it, which is a partial repeal, are legislative powers.’ If so, it is difficult to conceive how the judicial department can arrogate to itself the right to hold a murder case over relator for an indefinite time against his consent.

“That such a rule will be the sword that strikes civil liberty in Texas to its very heart and will bring us again to the inquisitorial methods of England and Spain, against which condition both the Federal and State Constitutions are framed to protect the citizens, can not be disputed. Again, conceding such power of the court, the immunity offered must be for all offenses incident to, connected with or arising out, of the transaction about which the witness is called to testify. Granting that a general promise of immunity might be this broad, it could not be contended that an immunity that was expressly limited to one offense, as was done in this case, could protect a witness. Our Penal Code provides in substance that when an agreement is entered into between two or more persons to commit a felony, that such an agreement itself, without proof that it was ever consummated, constitutes a felony and is punishable by imprisonment in the penitentiary.”

The Bollman and Swartwout case, as shown by Shepard’s U. S. Sup. Ct. Citations, and 3 Dig. U. S. Sup. Ct. Rep. (Lawyer Co-op. ed.), p. 3240, paragraph 93, has been cited and upheld on one topic or another, twenty-two times by the Federal Supreme Court, from the time it was rendered to the 215 United States Report, scattered all along in our history, and has never been weakened as an authority, and was the basis of the Louisiana case above mentioned on the topic at hand. It also has been cited with approval in 15 Federal cases in courts inferior to the Supreme Court.

Having shown above that there is no power to suspend the laws in this State except when done by the Legislature; and that the Legislature, under our present Constitution, considering the history thereof,

*576

and change therein as above set forth, can not delegate this power; and having shown that even the Legislature is limited in the exercise of such power, let us revert to the decision in Brown v.. Walker, and the proposition that courts can not suspend the criminal law of the State either with or without the request or aid of the State’s attorney. In every' case where the attempt has been made to serve a judicio-administrative amnesty for the giving of testimony, it has signally failed when there was no statute especially authorizing it. The cases of statutory amnesty to a witness as found in the anti-trust, interstate commerce, and bankruptcy laws, have no application, and no statute of a general nature has ever been passed applying them to the general criminal laws of this State; or to homicide, which is the crime involved in the case at bar. The cases cited hereafter deny that the courts have any such power, without statute expressly authorizing it.

In the case of Nachman (114 Fed. Rep., 995), a bankrupt was being examined as to business transactions which would incriminate him. He claimed his privilege under United States Constitutional amendment 5, providing that no person shall be compelled to incriminate himself. Against this claim was cited the bankruptcy act, 1898, sec. 7, which provides that no testimony given by a bankrupt on examination concerning conduct of his business shall be offered in evidence against him in any criminal proceeding, and the case of Brown v. Walker was cited. Following this last cited case the court said: “No act of Congress can deprive a citizen of the privilege afforded by the Constitution unless it supplies a

complete

protection from

all

perils against which the Constitution was intended to provide. Section 7 of the Bankruptcy Act cited above, does not provide' such complete immunity,” citing Counselman v. Hitchcock, 142 U. S., 547 , which involved the Interstate Commerce Act, which on immunity was broader than any Texas statute as to dismissals or any question of that character. The court then refers to the charge in the interstate commerce law, and to Brown v. Walker, and continues: “It may well be contended that the object designed to be accomplished by sec. 7 of the Bankruptcy Act, which requires the' bankrupt to submit to an examination concerning the conduct of his business, will be defeated, if the witness is thus permitted to refuse to testify concerning his dealings with his creditors and others, and such undoubtedly is the unfortunate results; but it is for the

Congress

to provide, if it can, against such contingencies. . . . The

courts can not

deprive a citizen of the constitutional right invoked by him for his protection upon any consideration of inconvenience or for the purpose of administering what it may regard as a salutary or useful law.” ( 114 Fed., 997 .) The court held that the bankrupt could not be compelled to testify.

In Foot v. Buchanan, 113 Fed. Rep., 156, there was an attempt to compel a witness to testify before a grand jury investigating transactions which were criminal violations of the Federal anti-trust laws, in which transactions he had participated. He claimed his exemption from giv

*577

ing such testimony on the ground of the Fifth Amendment of the United States Constitution against compulsory incrimination. The court said: “It is set up in the answer filed by the district attorney, that the petitioner, when carried before the court upon his failure to answer questions before the grand jury, was

assured by the court

that no information given by him in his answers to the questions would or could be used against him. . . . The petitioner could

not

be required

to waive

his constitutional privilege upon

such an assurance by the court.

He has a right to stand upon his constitutional privilege

notwithstanding such assurance,

and to remain silent whenever any question is asked, the answer to which may tend to incriminate him,” citing Temple v. Commonwealth, 75 Va., 892 . The case of Brown v. Walker was cited and considered in this Federal case (113 Fed. Rep., 161). To the same effect is the case of United States v. Bell, 81 Fed. Rep., 830. Among other things that case holds: “If one, fully cognizant of his constitutional right to remain silent in respect to matters tending to incriminate himself,

abandons it,

whether under

compulsion or otherwise,

and essays to speak under oath, he must speak the truth, and may be prosecuted for perjury if he does not; but, before this principle can be invoked, it must appear that the witness’ abandonment of his rights was

knowingly

and

understandingly

made, and that no undue advantage has been taken of an ignorant witness in the course of an inquisitorial examination.”

In this, the Bell case, the court said: “No stated

rule

or

regulation

or

act of administration

in the given case can be constitutional which does not in some way protect the right

to be silent

if the citizen

chooses to be silent.

Whether any given citizen has exercised his right

to waive

his privilege, and speak voluntarily, subject to the pains and penalties of the statute against perjury, depends upon the circumstances of each particular case, and upon this alone. In this case the defendant did not waive his privilege under the Fifth Amendment, under the facts above stated”—which facts were unlawful exaction and undue compulsion of the false testimony. The court held that there can be no

waiver

of the rights of exemption from self-incrimination under such circumstances, that perjury could not be predicated on the f<use testimony, and the defendant was discharged. This case shows the great extent to which the law of exemption from self-incrimination has been carried, and how strongly the law denounces the idea that immunity can be

thrust

upon a witness, or 'that without his consent he can be

compelled

to

waive

his constitutional rights, for

consent is an essential to waiver.

And in this case Brown v. Walker was fully considered, and quoted from. The opinion in this (Bell case) is an elaborate one, reviewing a host of authorities, and drawing many analogies and parallels, and is in full accord with all the able decisions on the topic. It shows that

statutes granting complete immunity in one class of cases can not be applied to any other class, whether the. immunity is greater or less or otherwise.

But it holds there must be a

statute

authorizing the grant of complete

*578

immunity, and that

judicial inference

can not

take the place of such a statute.

As is well said in that case (81 Fed. on p. 850) : “Until

Congress

shall set about improving the system of inquisition [in pension fraud cases], it is not to be expected that the

courts

shall aid its usefulness at the expense of the constitutional protection of every citizen.”

Further showing that there can be no judicio-administrative immunity, and that it must be entirely statutory, the following is taken from the opinion in Hale v. Henkel, 301 U. S., on pp. 43 and 68: “If the [fifth] constitutional amendment were unaffected by the immunity statute it would put it within the power of the witness to be his own judge as to what would tend to incriminate him, and would justify him in refusing to answer almost any question in a criminal case, unless it clearly appeared that the immunity was not set up in good faith.” And so said Chief Justice Marshall in the Aaron Burr treason case, 1 Burr’s Trial, 344 , 345, 190, 193.

Upon this subject the case of Ex parte Irvine (74 Fed. Rep., 954), decided by Judge Wm. H. Taft, afterwards President of the United States, is an authority. Judge Taft said:

“It is argued for the respondent represented by the attorneys for the U. S. he is given by virtue of the action of the government entire and absolute immunity from prosecution for the offense to which the alleged incriminating question relates, by the long approved practice of recommending to the pardon of the executive, accomplices and co-defendants whom the government calls to establish its case against the principals and other defendants. The cases of Rex v. Rudd, 1 Cowp., 331; People v. Whipple, 7 Cowp., 707, and Commonwealth v. Knapp, 10 Pick., 493 , are relied upon to show the extent and binding effect of such a rule. These cases show there is an equitable right to a pardon where an accomplice is called by the government to give testimony against those with whom he was engaged in violating the law; but we do not find any authority, and none is cited to us, in which an equitable right to executive pardon, if the witness states fully and fairly the truth, has ever been held to do away with the constitutional privilege not to give evidence against himself

if he chooses to claim it.

See whisky cases, 99 U. S., 594 .

It is a mere

equity,

after all, not dependent upon a positive statute, and commensurate only with full and fair revelation by the witness of the entire truth.'”

Ex parte Irvine, 74 Fed. Rep., 954.

The case of State v. Warner, 81 Tenn., p. 53, involved the construction of the grand jury statute, which provided in the usual way for investigations of crime. Section 5089 (Code of Tennessee of 1858), provided as follows: “And no witness shall be indicted for any offense in relation to which he has testified before the grand jury.” In construing this statute the court, on pages 63, 63, 64 of the 81st Tennessee, said:

“The purpose of the Act is to offer inducements to persons who have committed offenses against law in connection with others to divulge the secret. There is

nothing compulsory

in the language nor could there be without a violation of the Constitution. It recognizes, by its terms a

*579

want of authority in the Legislature to command the witness to testify; and merely offers a reward to him if he has or will do so. The

witness may elect

to take advantage of the law, or take chances of a discovery and conviction of himself. By it the Legislature proposes to buy the evidence of one guilty man against another or others, and to pay for it by exemption from indictment for the offense in relation to which he has testified. In this case the court has undertaken

to compel

the witness to give evidence against himself.

The Constitution says this shall not be done.

The court claims the authority under section 5089. Both the Legislature and the courts are creatures of the Constitution, and must conform their actions to its provisions. The Legislature could not say the witness

shall

testify, but could and did say,

if he

will, etc., and the

courts

can do

no more.

This witness must

determine for himself

whether he will accept the legislative reward offered for his testimony. Whether the constitutional protection thrown around offenders is good or bad policy, is a question with which courts and Legislatures have no concern. They must support and enforce the Constitution as they find it. Being its creatures they must obey its mandates, and not evade them by strained construction for any emergency, however important to public weal it may seem.

“The language of both the Constitution and the statute is plain, simple and unambiguous. The one is positive in

prohibiting compulsion,

the other simple in its offer

of inducement

and reward to an offender to betray his fellows by

voluntary

election to testify for the sake of protection to himself.

“At common law the rule is, that if an associate in crime will reveal upon his fellows and testify against parties to the same .crime, he may reasonably hope the State will in consideration pardon his offense. It was a part of the rule, that the government was not bound to apply it. The object of the

hope

held out by that rule was to increase the means of discovery and punishing offenses.

“Our law-makers recognizing the utility of the rule, but seeing that it did not accomplish to any great extent the ends aimed at, modified it by converting a

bare hope

into an

absolute assurance,

making

it

a positive mandate instead of a discretion resting in the breasts of courts and attorneys-general.

So that our statute is nothing more than the common-law

rule,

made certain of application.

“Under the common-law rule the offered witness could not be

compelled

to testify; then why should a different practice obtain under the same rule declared by statute in more direct and trustworthy terms under a Constitution protecting a witness from giving evidence against himself, while the common-law rule is untrammeled by Constitution except as it comes of usage and precedent?

“In State against Hatfield, Judge McKinney, with the statute before him for construction, says ‘such person [meaning a person before the grand jury by compulsion] can not be compelled to criminate himself, but as an inducement to a full and unrestrained disclosure in re

*580

gard to others without peril to himself it was deemed politic,

in the event of doing so,

to exempt him from prosecution.'

“There can be no doubt as to the meaning of this language. It is susceptible of but one construction, which is, that

compulsion

was

not

intended, and that

inducement

was the

sole

object of the legislation.”

Brown v. Walker is referred to in Bram v. U. S., 168 U. S., 532 . The latter decision shows all the English law, and that at the time of adoption of American Constitutions it was a fundamental right at common law not to compel self-incrimination.

The following are the Texas statutes that are involved in this question:

Article 729, C. C. P. “The attorney representing the State may, at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others; and the person so discharged may be introduced as a witness by either party.”

Article 730, C. C. P. “When it is apparent that there is

no evidence against a defendant

in any case where he is jointly prosecuted with others, the jury may be directed to find a verdict as to such defendant, and, if they acquit, he may be introduced as a witness in the case.”

Article 37, C. C. P. “The district or county attorney shall not dismiss a case unless he shall file a written statement with the papers in the case, setting out his reasons for such dismissal, which reasons shall be incorporated in the judgment of dismissal; and no case shall be dismissed without the permission of the presiding judge, who shall be satisfied that the reasons so stated are gopd and sufficient to authorize such dismissal.”

Article 572, C. C. P. “The only special pleas which can be heard for the defendant are:

“1. That he has been convicted legally, in a court of competent jurisdiction, upon the same accusation, after having been tried upon the merits for the same offense.

“2. That he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.” .

None of these statutes says

anything at all about immunity.

The only immunity that exists in this State is by the judicial application of the law that where one agrees to turn State’s evidence, and keeps his agreement, that he can not afterwards be prosecuted for the evidence he gives. That this was judicial amnesty there can be no doubt, but the rule had its origin under, and can be justified only by the former Constitution when the provision existed that the laws can not be suspended except “b'y the Legislature

or its authority,”

which to a certain extent might probably be considered as allowing a shadowy implication that the Legislature might delegate that power to a limited extent.

But since that clause has been, eradicated, there is no power of delegation whatever.

But even under the holdings that where one agrees to turn State’s evidence under promise of immunity he will be immuned, there is no holding whatever in any case, showing that immunity can be

*581

thrust

upon him without his consent. Every case of that character is based upon an agreement; and there can be no agreement when one of the parties to it is

forced

against his will; and as said by the various courts above quoted, especially in the case of Nachman (114 Fed. Rep., 995, 997), Foot v. Buchanan (113 Fed. Rep., 156, 161), U. S. v. Bell ( 81 Fed., 830, 850 ), Warner v. State ( 81 Tenn., 52 , loc. cit., 61, 62), a witness can not be

made or compelled to waive

his privilege, although he may waive it if done freely, without compulsion, and voluntarily, and no advantage is taken of him by reason of his ignorance or otherwise, and this is exactly what was held in the Bell case, supra (81 Fed. Rep., 830, loc. cit., 850). Even under the old Constitution the decisions went as far as was possible to go constitutionally in granting immunity, and certainly under the present Constitution the rule ought not to be extended farther. But in none of the cases was

compulsion

used against a witness to

make

him testify to .matters that would incriminate him but for the immunity granted. If he did not choose to testify, he did not earn his immunity, and might be prosecuted. This put our State exactly in line with the Tennessee case referred to.

In the majority opinion a quotation is made from Cyc. with approval, as follows: “The constitutional privilege of refusing to answer can not be taken away by statute, unless absolute indemnity is provided, and that nothing short of complete immunity to the witness, an absolute wiping out of the offense as to him, so that he can no longer be prosecuted for it, will furnish that indemnity, and that statutes aiming to take away the constitutional privilege without providing complete immunity are unconstitutional.” This is in line with quoted eases. Some of the decisions cited in the majority opinion lay down the positive rule that the offense about which witnesses are called to testify must be obliterated and wiped out of existence before the court can compel their testimony. In the case of Cullen v. Commonwealth, quoted with approval by Justice Sherwood in his great opinion in Ex parte Carter, 66 S. W. Rep., 540 , he uses the following language: “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 that indemnity.”

In the case of State v. Jack, 76 Pac. Rep., 911 , it was said, in reply to the contention that complete immunity had not been provided: “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.” Judge Brooks in his dissenting opinion in the case of Ex parte Max Andrews, 51 Texas Crim. Rep., 79 , while not agreeing with the majority opinion on some of the matters, referred approvingly to Judge Sherwood’s opinion in Ex parte Carter. I quote from Judge Brooks’ opinion: “If relator was exempt from prosecution by this statute, when compelled to give evidence against himself, he should have been required to testify.

Of

course,

the exemp

*582

tion must be absolute.

Ex parte Carter, 66 S. W. Rep., 540 .” These authorities might be pursued indefinitely and almost without limit, holding that when the

witness shall be immune, that the immunity must be absolute and complete so far that he could not be prosecuted for a violation of the statute

or under the statute for the offense in which he gives his testimony against others. It may not be without the pale of judicial reasoning to say that wherever the witness is required to testify to incriminating facts by the

statute,

and that

statute

gives complete immunity so that he can not be prosecuted, he may be forced to testify. He may be then compelled to give evidence,

but in no other case and under no other circumstances can his testimony be compelled.

Under our statute which has been previously quoted in this dissenting opinion, wherein a witness may agree to testify and does testify truthfully in accordance with his contract, which contract, of course, must be ratified by the judge, he may claim his exemption from prosecution; hut that is in

every instance by agreement of the witness

with the constituted authority authorized to make the agreement subject to approval of the court. This question came up for revision in the case of Cameron v. State, 32 Texas Crim. Rep., and it was there so held, but under all of the authorities

this is not complete or absolute immunity.

The

immunity is dependent upon conditions and circumstances which prevent it from being a complete immunity as under statutory immunity or statutory amnesty. This is but an agreement, which may be broken by the witness. He may decline to

testify in the case, and

if he does, he is not immune but may be prosecuted.

This is so by all the authorities. He may testify untruthfully and be subject still to prosecution not only for the case in which he delivers the false testimony and in which he turns State’s evidence, but also for the perjury committed on the trial of the case. This is not a novel rule in Texas, and in fact it is so in the cases cited in the majority opinion. It is deemed unnecessary to review or cite those cases. It is so in the elementary works. It is so wherever constitutional jurisprudence is known among our race —England and America. So that wherever the party

agrees

to testify',

there is not complete immunity and can not be immunity until after the witness has

testified. See Greenhaw v. State, 41 Texas Crim. Rep., 278 ; Gibson v. State, 42 Texas Crim. Rep., 653 ; Ex parte Carter, 62 Texas Crim. Rep., 113 . The last mentioned case—Ex parte Carter— was delivered on 19th day of April, 1911, by this court. The writer of this dissent wrote the opinion in that case, citing Ex parte Greenhaw v. State, supra. The court was then constituted as it is now constituted. In the Greenhaw and Carter cases, supra, Greenhaw and Carter had by agreement with the State turned State’s evidence and were used as witnesses in the respective cases by the State. Greenhaw resorted to a writ of habeas corpus for the purpose of obtaining bail, because of his contract with the State, approved by the court, to testify against his co-defendant, and further, that he was carrying out his contract in good faith. The trial court decided against him, and on appeal this court

*583

affirmed the judgment on the theory that he

was not immune from punishment and was not entitled to bail

as a witness in the case, but

would be held

under the indictment of murder

until the final disposition of the other cases.

The substance and effect of that decision was to hold that while he had faithfully carried out the contract on his part, he still

was not immune from punishment until after the final disposition of the case

in which he turned State’s evidence. There can be no •other conclusion except that he was not immune from punishment until final disposition of the case in which he turned State’s evidence.

Therefore, he did not have complete immunity and could not have complete immunity,

because the whole matter

was conditional.

This

differentiates it from the statutory immunity,

which is complete whenever he was used as a witness and compelled to testify. The same proposition •exactly occurred in the Carter case. Carter had turned State’s evidence against Grant. The case had been tried and conviction had been obtained. On appeal that conviction was set aside. His co-defendant was again convicted. Appellant sought release as a witness because he had faithfully carried out his part of the contract in testifying. This court held he

was not immune,

and that he

could not be discharged as a witness,

but

would be held as defendant

in the case

until final disposition

of the Grant case in which he turned State’s evidence.

If these decisions settle anything they do settle the proposition that there was no complete immunity. It was conditional, pure and simple. Nothing is complete and effective and full until all the conditions have been complied with and result declared under such agreement

to turn State’s evidence. Therefore, I assert again, there was no immunity in the case until the final disposition of the case in which he turned State’s evidence. A

conditional immunity

is not complete immunity any more than a

conditional pardon is an absolute pardon.

This rule is recognized in all the decisions in Texas so far as I am aware. The proposition is laid down by Mr. Branch in his work' on Criminal Law, section 678 in this wise: “If the State makes a contract with defendant for immunity from prosecution in consideration of his turning State’s evidence, it is due the dignity of the State that the contract be carried out in good faith, and where such defense is set up, and it appears that a valid contract was made, and carried out by defendant in good faith, the court should dismiss the ease. Camron v. State, 32 Texas Crim. Rep., 180 , 22 S. W. Rep., 682 ; Hardin v. State, 12 Texas Crim. App., 186; Bowden v. State, 1 Texas Crim. App., 137.” It is further stated by Mr. Branch in the same work and same section:

"An agreement to turn State’s evidence will not bar a prosecution, where the agreement is violated by false testimony or by a refusal to testify in good faith, fairly and fully,

as to facts within the knowledge of the proposed witness. Meeley v. State, 27 Texas Crim. App., 324, 11 S. W. Rep., 376 ; Hicks v. State, 40 Texas Crim. Rep., 1 , 48 S. W. Rep., 186 ; Tullís v. State, 41 Texas Crim. Rep., 87 , 52 S. W. Rep., 83 ; Heinzman v. State, 34 Texas Crim. Rep., 76 , 29 S. W. Rep., 482 ; Cox v. State, 69 S. W. Rep.,

*584

145.” Again he says:

"A party is not entitled to immunity from prosecution until he complies with his contract ”

There is another reason why the court can not, at request of State’s attorney or otherwise, compel the accused to testify against his will, and that is, that the immunity granted to obtain testimony is in the nature of a pardon or amnesty, and no pardon or amnesty can be effective until voluntarily accepted by the person pardoned. This, in my investigation, is the universal rule, so far as it has been formally adjudicated in all the American courts. The ease of Brown v. Walker, as quoted above, holds that legislative amnesty, in cases like this,

is a

pardon— or

“general

amnesty.”' The court also said, “it is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he can not longer set up his privilege, since he stands with respect to such offense as if it had never been committed” (citing many English cases), 161 U. S. at p. 599 .

That a pardon

must be accepted

by the person in whose favor it is granted, and

has no effect when not

so

accepted,

is the holding in the following cases and authorities: Chief Justice Marshall, in U. S. v. Wilson, 7 Pet. (U. S. Sup. Ct.), 150, 29 Cyc., p. 1565, section 2; Rosson v. State, 23 Texas Crim. App., 287, 4 S. W. Rep., 897 ; Hunnicutt v. State, 18 Texas Crim. App., 498, 51 Am. Rep., 330 ; Ex parte Powell, 73 Ala., 517 , 49 Am. Rep., 71 ; Michael v. State, 40 Ala., 361 ; Redd v. State, 65 Ark., 475, 47 S. W. Rep., 119 ; People v. Potter, 1 Parker Cr. N. Y., 47; Commonwealth v. Holloway, 44 Pa. St., 210, 84 Am. Dec., 431 ; In re Conditional Discharge of Convicts, 73 Vt., 414, 423 ; 51 Atl., 10 , 56 L. R. A., 658, 660, 37 Cent. Digest, Title Pardon, section 15; In re De Puy, 7 Fed. Case No. 3814, 3 Ben., 307 ; Ex parte Reno, 66 Mo., p. 266, 27 Am. Rep., 337 ; Saunders v. U. S., 73 Fed. Rep., 784; Grubb v. Bullock, 44 Ga., at p. 381; Commonwealth v. Shisler, 2 Phila., 258 , 14 Phia. Leg. Int., 93; Ex parte Lockhart, 1 Disney (Ohio), 108 ; In re Calicott, 4 Blatcbf. (U. S.), 89.

The rule last above stated applies to a conditional pardon as well as to an absolute one. Lee v. Murphy, 22 Gratt. (Va.), 789; 12 Am. Rep., 563 , 24 Vol. Am. & Eng. Law, 2nd ed., pp. 577-8.

In United States v. Wilson (7 Peters at p. 160), Chief Justice Marshall said: “A pardon is a deed, to the validity of which delivery is essential.

It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.

It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors.” This is the common law (see Hawkins b. 2, Ch. 37, section 59, where it is said: “But it is certain that a man may waive the benefit of a pardon under the great seal,” etc.), and is the statutory and constitutional construction also of all American law. Marshall, Chief Justice, in the Wilson case cites case after case of waiver of pardon and shows that it can not be forced upon the beneficiary.

*585

So far, in a general way, two phases of this matter have been discussed, and incidentally the third. The first is, immunity under a statute which requires the defendant to testify as in the anti-trust and corporation cases, and matters of that sort, in which he may be compelled to testify and be immune. "Under this phase he would be immune whether he' testified truthfully or falsely. He might be convicted of perjury, but not tried in the immune ease in which he was compelled to testify in which he would incriminate himself. The second is by agreement and contract he makes with the State. The first is complete immunity; the second

grants p,o immunity at all until after the contract has been fully and fairly and truthfully performed.

The third is the one at issue in this case. The majority opinion cited the cases under the two preceding questions as authority for the third. How this can be, I do not understand. In neither of the other cases is he

compelled

to give evidence against himself. In the first question put he is rendered immune by the Act of the Legislature, which suspends or repeals the Act so far as he is concerned, and, therefore, he can not be subject to punishment. He is granted complete and absolute immunity, and all prosecution against him is eliminated and barred by legislative authority. Enough has been said of that. In the second, he can only claim it, as before stated,

under contract,

which is

conditional to be performed,

and, therefore, there is

no immunity,

and

can not be any immunity until after the matter has been fully adjudicated in court and he has complied with his contract.

Then in good faith he may insist upon being discharged and not prosecuted. It is a question of having his case dismissed because of the fact that he turned State’s evidence, and the prosecution is not to be further carried on. The question here, however, is flatly, squarely and incisively put, that the district attorney, with the sanction of the district judge,

can compel, without an agreement or without statute,

a witness to testify and incriminate himself. If there is anything that is squarely in the face of the constitutional inhibition, it is this holding. The- Constitution provides that an accused shall not be compelled to give evidence against himself. My brethren put it on the ground that he is immune by order of the district court under

agreement

with the district attorney. But the witness has not

agreed.

The Legislature has not sought to pass such legislation. That body of course could not suspend the Bill of Rights. It has not conferred, nor sought to confer any authority upon the District Court to render immune any defendant in any case in Texas and force him to testify. This-is

compulsion in the face of the organic law and prohibition of the Bill of Rights.

These matters have been referred to somewhat in previous portions of this dissent as being collated in Mr. Harris’ excellent annotated Constitution. The Legislature, had it sought to do so, could not confer power upon the district judge to suspend any law in Texas. The Constitution, Bill of Rights, section 28, expressly

inhibits

the

suspension of any law except by the Legislature itself.

The Legislature, therefore, could not confer authority upon the district judge to suspend the laws

*586

of this State, and in fact does not confer that authority upon any department of Texas government or any officer within its bounds. We have had recently a very thorough test of this matter in the cases of Snodgrass v. State, supra. Judge Harper wrote one of the original opinions and the writer of this dissent wrote the other in the Snodgrass cases. On rehearing Judge Harper wrote elaborately and strongly against the very proposition that is involved in this case, holding that in those cases the Legislature could not confer such power upon the district judge, either to suspend the law, or pardon the party convicted, and the Act of the Legislature was held unconstitutional. I cite Snodgrass cases as authority

in point against the prevailing

opinion in this case, and as supporting this dissent. If they do not do so, then I am at a loss to understand the propositions and principles announced in these cases. Authority to suspend sentence is legislative and not judicial. The court can not force upon or refuse such suspension. It can only be raised by the accused in sworn plea, and can then be determined only by the verdict of the jury. By that verdict the court is unalterably bound. Baker v. State, 158 S. W. Rep., 998 . The Baker case is directly in point and positive authority against the majority opinion in the instant case as are the Snodgrass cases. I might elaborate this proposition by citing numerous eases in .Texas and throughout the Federal Union, State and Federal, to the effect that no power can suspend a law in the State unless expressly authorized by the Constitution, and even under the Federal Constitution itself the Congress can not do it except in the instance of writ of habeas corpus under circumstances mentioned in the Federal Constitution. In Texas, however, the Bill of Rights expressly provides that the writ of habeas corpus in this State shall never be suspended. The Bill of Rights places that beyond the power of the Legislature. The Governor, Legislature' and courts combined, if adhering to the provisions of the Constitution, can not set aside the writ of habeas corpus or suspend it. It might be entertaining and instructive to follow up these questions. Questions arose during the late civil war in Texas and the proposition was asserted that civil liberty dominated and was superior to military authority, even in the troublesome times of that great war. I say without fear of any contradiction that there can not be found a well considered case where it has been held that the court can suspend a law in Texas and compel a witness to testify against himself, and that the Legislature of Texas has never sought to confer any such authority upon any tribunal in Texas since the amendment of the Bill of Rights in 1874. Back of that, is the suspension of the laws in Texas in the Reconstruction times, when the troublesome days immediately followed, that serve today as a blot upon our civilization and jurisprudence. This instant case, perhaps, has gone further than any case of which I have any knowledge in the history of our jurisprudence. If the court can compel witnesses to incriminate themselves, and testify against themselves, at its will and pleasure, then the question may well be asked, what guarantee have the

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people of this State of their constitutional rights or the safety of themselves under the inhibitions contained in the Bill of Eights which they sought to accord themselves in their freedom ?

I have written perhaps more than is necessary, and more than ought to be necessary, but this is such a wide departure from our law, and, as I view it, such an overturning of the fundamental law itself, that I have felt I should write what I have written, and call attention to the fact that no opinion has been written, in my judgment, that is so far-reaching in results and so contradictory to all law, constitutional, statutory and judicial, as in this case.

Believing that my brethren have not realized the extent to which they have gone and the error into which they have fallen, I have written so that attention may be called sharply to the prevailing opinion in this case and its effect, and with the hope that it may not be followed.

Discussing the above matters, except incidentally, I have not mentioned there are expressions in the opinion of the majority in the ¡Napoleon case, supra, which were not called for and are but obiter dictum. There are many other reasons, in my judgment, why the majority opinion is wrong, but I have already written beyond what I intended or even what might be necessary.

In closing this dissent I wish to acknowledge my indebtedness to and great appreciation of the masterful and exhaustive argument of Messrs. Martin & Zimmermann, L. C. Penry and A. L. Love, attorneys for applicant. My investigation of the questions involved has been greatly aided by their brief and argument. They have shown great ability, painstaking research and consummate skill in treating the questions presented for revision. The reporter will report their argument on motion for rehearing as fully as the rules will permit.