Ex Parte Copeland

• Decision Date: 29 March 1922
• Docket Number: (No. 6934.)
• Citation: 240 S.W. 314
• Parties: Ex parte COPELAND.
• Court: Texas Court of Criminal Appeals

240 S.W. 314

Ex parte COPELAND.

(No. 6934.)

Court of Criminal Appeals of Texas.

March 29, 1922.

Rehearing Denied April 26, 1922.

Original ex parte application for writ of habeas corpus by J. D. Copeland. Writ denied, and relator remanded to custody.

Douglas & Carter, of San Antonio, Lon Curtis, of Belton, and Hart & Patterson, and Garrett, Brownlee & Goldsmith, all of Austin, for appellant.

J. B. Robertson, Dist. Atty., of Austin, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

By an order of the criminal district court of Travis county, relator was adjudged in contempt of said court by reason of his refusal to answer certain questions propounded to him by the grand jury of said county; he having been directed by said court to answer said questions and having refused so to do.

No question has been raised of the fairness or legal manner and form of any procedure antecedent to the entry of such judgment of contempt, and we are thus relieved of any need for discussion of these matters, and are brought at once to the substantial contentions made by relator. No question is raised in the brief of relator of the fact that the matters under investigation were properly within the scope of a grand jury inquiry, and only those of the subjects of the investigation will be mentioned as may be necessary to clarify our opinion.

Letters had been mailed and delivered in Travis county, Tex., to various parties, among them one Jeadie Janes, in which the parties addressed were admonished to refrain from certain lines of conduct such as bootlegging, gambling, associating with prostitutes, etc.; most of said letters concluding with some statement to the effect that no further warning would be given, and some of them, as in the case of Janes, ordering the recipients to leave Travis county or suffer the consequences. All of said communications were on stationery with a lithographed letter head, upon which appeared the following:

"Knights of the Ku Klux Klan, Capital City Lodge No. 81, Austin, Texas. Printed by the Ku Klux Klan Press, Atlanta, Ga."

None of said communications were signed, but each bore the imprint of a seal upon which was the following inscription: "Knights of the Ku Klux Klan. Capital City Lodge No. 81, Austin, Texas." Janes paid no attention to said communication. Shortly after its receipt by him, he was seized on a street of Austin, Tex., by a group of men, forcibly placed in a car, and carried to a point outside of the city limits, and there asked if he had received the communication above mentioned, to which he replied in the affirmative, and also stated, in answer to further questions, that he did not know why he had not heeded its warning. His clothing was then removed from the upper part of his body, and he was severely whipped and a coat of tar and feathers applied, and he was brought back to said city and set at liberty on a public street thereof.

That the grand jury was properly investigating the above matters with others, and that same constituted offenses against the laws of the state of Texas, and that the answers to the questions asked were material, would seem to be without question. The record shows that relator, while a witness before said inquisitorial body, was asked the following questions:

(a) Are you a member of the Ku Klux Klan of Austin or Travis county, Tex.?

(b) Have you ever attended meetings of Ku Klux Klan of Austin or Travis County, Tex.?

(c) What persons have you seen at those meetings which you have attended?

(d) Give the names of all members of the Ku Klux Klan in Travis county, Tex.

(e) Who are the officers of the Ku Klux Klan in Austin or Travis county, Tex.?

Relator refused to answer said questions and each of them, upon the ground that the answers would tend to criminate him. Thereupon the state, through its district attorney and with the approval of the district judge, evidenced by an order fully reciting the matters of such interrogation and duly entered of record, promised and guaranteed to relator complete immunity from prosecution for any offense connected with the matters so asked about or that might be ascertained as the result of his answers to said questions. In this connection the record discloses that relator also admitted and stated that he had no personal connection with or knowledge of the sending of any of said letters or the transaction wherein said Janes was treated as above set forth, or any of the other matters before said grand jury at the time of any of such occurrences or prior thereto. When offered immunity, relator raised the question of the scope and extent of the power of the state to grant him immunity from federal as well as state prosecution for any offense involved; affirmed his refusal to accept any proffered contract to testify in return for such offered immunity; also his right to determine that said answers would incriminate him; and further declined to answer any of said questions, which action on his part was followed by the judgment of contempt, from restraint under which relief is here sought.

Certain questions arise under the above facts, which are before us without dispute. Would the answers of relator incriminate him? If so, could the state, after offer of immunity, which was not accepted by relator, compel him to answer? Would the state's guaranteed immunity extend to relator's protection also from federal prosecution if this were involved?

Reverting to the first question just stated, it is clear that, if a given answer does not involve that which incriminates the person to whom it is addressed, such answer may not properly be withheld. We are discussing a case involving only the objection to giving such answer, that it would incriminate.

Who is to decide whether the answer so withheld is or would be incriminating? In Ex parte Park, 37 Tex. Cr. R. 594, 40 S. W. 301, 66 Am. St. Rep. 835, this court said:

"Was the question of such a character, under the conditions then surrounding the defendant, as to other offenses of like character then pending against him, as would tend to criminate him as to said offenses? We hold that this matter is, in the first instance, to be determined by the court or judge; that is, `it must appear to the court from the character of the question and the other facts adduced in the case that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime. The liability must appear reasonable to the court, or the witness will be compelled to answer.' See, Ex parte Irvine, 74 Fed. 954, which is an exhaustive discussion of this question, and the authorities there cited; Fries v. Brugler, 12 N. J. Law, 79, reported in 21 Amer. Dec. 52 and note thereto on page 57; People v. Mather, 4 Wend. 229, reported in 21 Amer. Dec. 122, and authorities cited in note thereto. We quote from Whar. Crim. Ev. § 466, as follows: `To protect the witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. The witness, as will be seen, is not the exclusive judge as to whether he is entitled on this ground to refuse to answer. The question is for the discretion of the judge, and, in exercising this discretion, he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. But, in any view, the danger to be apprehended must be real, with reference to the probable operation of law in the ordinary course of things, and not merely speculative, having reference to some remote and unlikely contingency.' Mr. Wharton further says (section 469): `The witness is not the sole judge of his liability. The liability must appear reasonable to the court, or the witness will be compelled to answer. Thus a witness may be compelled to answer as to conditions which he shares with many others, though not as to conditions which would bring the crime in inculpatory nearness to himself. But, in order to claim the protection of the court, the witness is not required to disclose all the facts, as this would defeat the object for which he claims protection. It is not, indeed, enough for the witness to say that the answer will criminate him. It must appear to the court, from all the circumstances, that there is a real danger, though this the judge, as we have seen, is allowed to gather from the whole case, as well as from his general conception of the relations of the witness. Upon the facts thus developed, it is the province of the court to determine whether a direct answer to a question may criminate.' And see authorities cited in notes to said sections. This rule has been followed in this state. See, Floyd v. State, 7 Texas, 215. After the court has determined from the environments and the nature of the case, so far as stated, that the answer of the witness might tend to criminate him, it is then the province of the witness to state whether or not a truthful answer to the question asked would tend to criminate him. See authorities, supra."

As far as we know, the correctness of this announcement has not been questioned by this court, and, indeed, we think cannot be. Manifestly a claim that an answer is refused because criminating cannot be held as established by the naked assertion of such fact; and it is equally plain that to leave this matter to the ipse dixit of a witness, who for one or all of many motives might not wish to give evidence, would be to withhold from the state all testimony of friends of the accused, or those who might be interested in defeating the ends of justice. In Ex parte Irvine (C. C.) 74 Fed. 960, Judge William H. Taft uses the following language:

"The second question is whether the statement of the witness that his answer to the question would criminate him was conclusive, so that the court could not compel an answer...