Ex Parte Andrews

• Citation: 100 S.W. 376
• Parties: Ex parte ANDREWS.
• Decision Date: 27 February 1907
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 376

100 S.W. 376

Ex parte ANDREWS.

Court of Criminal Appeals of Texas.

February 27, 1907.

Application by Max Andrews for writ of habeas corpus. Writ granted, and relator discharged.

Fisher, Highsmith, Fisher & McGregor, for relator. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is an original application to this court for writ of habeas corpus by the relator, Max Andrews, seeking to be discharged from an alleged illegal restraint by the sheriff of Harris county, under a contempt proceeding from the criminal district court of said county. It appears from relator's statements, that during a term of the court held in Harris county in 1904, while the grand jury was in session, there was a strike of the employés of the Electric street car system of Houston as against their employers, one H. F. McGregor, being the manager of said system; that on account of the strike the employés were discharged and certain other employés were brought to take their places; that during this time some one dynamited Barney's place, which was a gambling resort, and at the time a number of persons were there engaged in gambling, and during the confusion some money was taken from the place. It is also made to appear that probably the labor unions of Houston took part in favor of the former employés, the strikers, and evidently a good deal of confusion and excitement existed in the city of Houston. It appears that a general boycott was enforced against said street car company, and very few people patronized or rode upon the cars of said company, and it was recognized that the labor organizations of said city had actually boycotted said street car company, under and by virtue of certain resolutions passed by certain labor organizations, and it seems that there was an effort being made to indict the leaders in said boycott, and especially the members of the committee representing said labor organizations in their differences with said street car company for violating what is known as the anti-trust laws of the state of Texas. At this time the criminal district judge, the Hon J. K. P. Gillaspie, had the grand jury to come before him, of which H. F. McGregor was a member, and instructed said grand jury, among other things, as follows: "Gentlemen: There have transpired several things in the last few days that it is made my duty to call your attention to, which have come to me officially, as well as in the public prints. One of them, I expect, you are as well informed about as I: That is, the matter of dynamiting here in town. One place, over a saloon; and because the place was an unlawful one does not make it lawful to dynamite it. The law makes it an attempt to destroy human life and property, to act in any such way. Those things are to be dealt with according to law. I call your attention to it, and want you to investigate that matter, and, if possible, to bring to justice the parties so offending. I will also call your attention to matters arising here, of acts which are prohibited by law, and which are covered by this statute. The statute reads thus: `Where any two or more persons, firms, corporations, or association of persons shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation, or association of persons for buying from or selling to any other person, firm, corporation, or association of persons.' [Acts March 31, 1903, Legislature of Texas, section 3, par. 2, c. 94, pp. 119-123]. This is a violation of the anti-trust law of this state. It is your duty to investigate these matters; and, if such is the case, that indictments be found against the persons so guilty or offending. What has caused these matters, I suppose you are familiar with as I am; but it is not for me to take any decided stand upon either side, but to call your attention to the law as I have read it, and, I ask you to look into these matters, and, if you find the law has been violated, to find indictments against the persons guilty of it. You will now retire."

Subsequent to this the relator, Max Andrews, was brought before said grand jury, and he was asked the following questions: "(1) Do you know from personal knowledge or otherwise the principals or any one connected with the dynamiting of Barney's place? (2) What labor unions have placed the Houston Electric Company and Highland Park on the unfair list, and authorized the fine of any of its members for riding on the street cars or visiting Highland Park? (3) Has the Musicians' Union authorized a fine of $15 on any of its members who ride on the street car, and forbidden any of its members to play at Highland Park? (4) Has the Bartenders' Union forbidden any of its members to work at Highland Park? (5) Has the Carpenters' Union authorized a fine of $2.50 a day on any of its members who serve as special officers on the street cars? (6) Give the names of any members of the committees of the labor council, other than yourself, who are co-operating and working to establish a boycott of the cars of the Houston Electric Company or to have same placed on the unfair list. (7) Give the names of any persons who have approached you and suggested plans for boycotting the cars of the Houston Electric Company. (8) Give the names of any persons who have refused to sell goods to people who have ridden on the cars of the Houston Electric Company. (9) Have you any personal knowledge as to who the parties were that dynamited Barney's place? (10) Give the names of the parties who have knowledge of the perpetrators of the dynamiting of Barney's place. (11) Give the names of any persons that can connect the employés of the street railway with having been guilty of dynamiting at Barney's place. (12) Give the names of any employés of the street railway company, or parties that can furnish the same, that were gambling at the time and witnessed the dynamiting of Barney's place. (13) What information have you that would connect employés of the Street Railway Company with the dynamiting at Barney's place, as indicated in the daily edition of the Labor Journal?" The relator refused to answer the above questions, and was then brought before the criminal district judge, and the circumstances of his refusal, submitted by the grand jury to him, were made known to the court, whereupon the judge required him to answer said questions before said body, which he refused to do, claiming the answers thereto would tend to incriminate him. Whereupon, the judge again required him to answer said questions, which he refused to do, and he was adjudged guilty of contempt of court, and his punishment assessed at a fine of $100, and he be committed to the Harris county jail, until he is willing to testify before said grand jury and give answers under oath to said questions so propounded by said grand jury, etc.

It is claimed by relator that no judgment was entered against him at the time, and none until after his leaving the city of Houston by rail for the city of Rockdale in Milan county, for the purpose of obtaining the writ of habeas corpus, and he insists that he should be relieved and discharged under the rule laid down in Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962. In that case we held that when one is adjudged guilty of a contempt of court, that the fact of contempt should be ascertained and determined by the court, and that this adjudication should be entered in the minutes of the court, and a writ of commitment thereon issued; that an imprisonment could not be imposed and executed upon merely a verbal order of the court, nor could the record be completed after the writ of habeas corpus had been sued out. This relates to actual contempts in the presence of the court such as we consider this case. The question, however, is one of proof. While we find a judgment and writ of commitment in the record, we do not find any proof outside of the recitations in the application that show the order of commitment was not entered prior to the suing out of the writ of habeas corpus. Relator further maintains that he should be discharged because he could not safely answer the questions propounded to him by the grand jury under the direction of the court without incriminating himself; that is, that the testimony which he would give might tend to incriminate him. In Ex parte Park. 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835, this question was discussed and the authorities reviewed, and it was there held that a witness must claim his privilege at the threshold; he could not give a part of the testimony that might be in his favor or disclose some of the facts, and then refuse to give other facts known by him; that is, if he once waives his right he cannot afterwards stand on his privilege. It was further held that while it was incumbent on the witness to assert his privilege and to be the judge thereof in the first instance, yet that the court itself was the final judge as to whether or not the testimony was privileged, and he should determine this from all the circumstances connected with the investigation within his knowledge, and from the environments of the case. Of course, this would apprehend that the judge must be informed as to what matter was being investigated and enough of the circumstances to enable him to determine the question of privilege. For the purpose of determining this question, it may be stated that the questions propounded to the witness divide themselves into two classes, suggesting two different lines of investigation, though involving the same subject-matter.

Questions 1, 9, 10, 11, 12, and 13, relate to interrogatories intended to...