“whether an act is done willfully is not ordinarily the subject of direct proof, but it is a state of mind of the accused which the jury may find from the evidence as a whole.”
How later courts described this case
- “whether an act is done willfully is not ordinarily the subject of direct proof, but it is a state of mind of the accused which the jury may find from the evidence as a whole.”
Written by the judges who cited it.
The opinion
ON appellant’s motion for rehearing.
WOODLEY, Judge.
Appellant argues that Sec. 3 of Art. 5429a V.A.C.S. does two things: (a) it deprives a witness of his privilege against self-incrimination, and (b) it affords him an immunity from prosecution. Upon' this theory he contends that the caption “providing for privilege of witness” is insufficient to give notice of both purposes, regardless of whether the word “privilege” be given a technical or non-technical meaning. He argues that if such caption be notice that the witness is granted immunity, *481 then there is no notice that his privilege against self-incrimination is taken away.
The witness was possessed of his right against self-incrimination under the constitution. This right could not be taken from him by statutory enactment other than by substituting therefor absolute immunity.
Sec. 3 of the act in question provides for immunity to the witness who is required to answer questions which would tend to incriminate him.
Immunity thus arises out of and supplants the constitutional privilege of the witness not to speak about an offense by removing his guilt as to the offense of which he is required to speak.
Under the reasoning in our original opinion we think that the caption is sufficient to give notice of this provision for immunity in lieu of his constitutional right or privilege.
The legislature being without power to deprive the witness of his constitutional privilege against self-incrimination without providing immunity in its stead, we cannot agree that Sec. 3 of the act should be construed as doing two separate things. The first would be ineffectual without the other.
Further, the statute gives immunity to the witness when he answers questions as required by the legislature or the committee, and it has been said that under such circumstances he could not then be giving evidence against himself and the constitutional provision as to self-incrimination would have no application. Ex parte Muncy, 72 Tex. Cr. R. 541 , 163 S. W. 29 ; Ex parte Copeland, 91 Tex. Cr. R. 549 , 240 S.W. 314 ; Griffin v. State, 43 Tex. Cr. R. 428 , 66 S.W. 782 .
It is next contended that the indictment having alleged that the many questions propounded to appellant were pertinent to the inquiry, it was incumbent upon the state to prove that each and all of the questions were pertinent.
We do not construe the indictment as containing a single allegation as to pertinency of the questions collectively, but rather as alleging that each of the questions was pertinent. Therefore, proof of refusal to answer any of the questions which *482 were pertinent would suffice, and it is immaterial that one or more of the questions may not have been pertinent.
We were in error in referring to the testimony regarding advice of counsel as a “side-bar remark”. A re-examination of the record discloses that Mr. Meredith testified that appellant’s counsel advised him not to answer practically every question asked.
Authorities cited by appellant appear to hold that an accused may show justification, when willfulness is an element of a crime, by proving that he honestly and in good faith sought advice of a lawyer as to what he might lawfully do, and fully and honestly laid all of the facts before his counsel, and in good faith followed such advice, relying upon it and believing it to be correct, only intending that his acts shall be lawful. He cites United States v. Murdock, 290 U.S. 389 , 54 S.Ct. 223 ; Williamson v. United States, 207 U.S. 425 , 28 S.Ct. 163 ; Townsend v. United States, 95 F. 2d 352 .
If because of the allegation that the refusal was willful these authorities are applicable, nevertheless here, as in Townsend v. United States, supra, there is nothing in the record to indicate that appellant honestly and in good faith sought advice of counsel as to what he might lawfully do; that he submitted to his attorney the true facts as required by the rule stated, or that he acted honestly upon counsel’s advice, believing it to be correct and intending only to act lawfully in refusing to testify.
The following rule is announced in Sinclair v. United States, 279 U.S. 263 , 73 L. Ed. 692 :
“The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and Sec. 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.”
Appellant next contends that the immunity granted by Sec. 3 of Art. 5429a V.A.C.S. is conditional and therefore insufficient to supplant his privilege against self-incrimination because it requires that he testify “truthfully.”
*483 Reliance is had upon the authorities holding that a statutory enactment must afford absolute immunity against future prosecution for the offense to which the question relates, or the witness cannot be compelled to testify.
This court has recognized this rule announced by the Supreme Court in Counselman v. Hitchcock, 142 U.S. 547 , 12 S.Ct. 195 , 35 L.Ed. 1110 . See Ex parte Muncy, 72 Tex. Cr. R. 541 , 163 S.W. 29 , supra.
We do not understand that the use of the word “truthfully” results in a conditional immunity. The law requires the answers of the witness under oath to be truthful, and the statutes assume that the answer giving immunity will be truthful.
In Douglas v. State, 99 Tex. Cr. R. 413 , 269 S.W. 1041 , Judge Morrow in construing Art. 694 P.C., said:
“The wording of the statute makes it plain that it was intended that one accused of violating the laws against the traffic of intoxicating liquors might be called upon to testify to facts, but if he truthfully discloses his connection with the offense, he is immune from prosecution . . .”
See also Messenger v. State, 81 Tex. Cr. R. 465 , 198 S.W. 330 .
We think the fact that a witness gave incriminating answers when required would suffice to establish immunity and the burden would be on the state to show that he did not answer truthfully.
It appears to be well settled that the legislature is vested with authority to enact a statute such as Art. 5429a V.A.C.S., requiring a witness to answer a question which answer, but for the immunity granted the witness by the act, would tend to incriminate him. Brown v. Walker, 161 U.S. 591 , Ex parte Muncy, 163 S.W. 29 .
Whether the benefit to be derived from a legislative investigation is sufficient to justify the granting of complete immunity from prosecution to a witness who has committed a heinous crime appears to us to be a serious question. Its answer is, however, for the legislature and not the courts.
Appellant’s motion for rehearing is overruled.