Ex Parte Muncy

• Citation: 163 S.W. 29
• Parties: Ex parte MUNCY.
• Decision Date: 05 November 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

163 S.W. 29 Ex parte MUNCY. Court of Criminal Appeals of Texas. November 5, 1913. On Motion for Rehearing, January 21, 1914.

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Original habeas corpus proceeding by Elbert Muncy. Relator remanded.

The following is the substance of the briefs on rehearing, referred to in the dissenting opinion:

First. The following statement in said opinion is erroneous and in the face of the record, to wit: "The district attorney in open court stated he would agree that the relator should not be prosecuted for any offense growing out of the killing of J. M. Muncy; and L. S. Kinder, Judge of the Sixty-Fourth judicial district, acquiesced in and approved said offer of immunity from prosecution, and informed relator he would not be prosecuted for any offense growing out of the killing of his father." There was no agreement that relator should not be prosecuted for any offense growing out of the killing of J. M. Muncy, and the immunity tendered him was expressly limited to the offense of murdering J. M. Muncy, and any and all other offenses were, by the expressed terms of the language used, excluded.

Granting that the placing of the witness upon the stand, under a general promise of immunity, would protect him for all offenses about which he might testify, it certainly could not be said to be true of immunity tendered a witness that was expressly limited to one offense only, and is referred to throughout the judgment of contempt as said offense, referring only to the offense of killing J. M. Muncy. Article 1433, P. C. 1911, defines a conspiracy as an agreement entered into between two or more persons to commit any one of the offenses hereinafter named in this chapter. Article 1434 provides that the offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have unlawfully combined. Article 1437, said Code, provides the agreement, to come within the definition of conspiracy, must be to commit one or more of the following offenses, to wit: Murder, robbery, arson, burglary, or any other offense of the great felony.

The theory of the state is, and the judgment of contempt affirmatively shows, in part at least, that a conspiracy, which is punishable under our statute as a felony, was entered into the day preceding the killing by relator and his mother, Bertie Muncy. The offense of conspiracy is expressly excluded from the immunity offered, and this relator has no protection whatever as to said offense.

In Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 301, 66 Am. St. Rep. 835, the relator was discharged because it appeared that he might have to give testimony of another offense, for which immunity had not been offered him, and which might be brought out on cross-examination by the defendant. While the direct question and answer might not have incriminated the relator of the offense of conspiracy, it has been the uniform holding of the courts of this and every other state that, if a legitimate cross-examination would elicit any information connecting the witness with any other offenses, he need not answer unless absolutely protected. Certainly the defendant would have a right to bring out on cross-examination all the connection the relator had with this offense, if for no other reason than to connect him with same as an accomplice and discredit his testimony.

Second. The court erred in the following paragraph of said opinion: "It is thus seen that when relator was called before the grand jury, he was promised immunity and accepted same, and gave testimony before the grand jury, a sworn statement of such testimony being incorporated in the record, and is as follows," etc. We cannot understand how the court made this mistake, as the record not only fails to show

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that he was granted immunity before the grand jury, but affirmatively shows that he was not; and the statement referred to in said opinion was not the grand jury statement, but was a statement secured at the ex parte hearing or inquest proceedings in the town of Lockney on the day of the killing.

The following facts are deducible from the above: First. That the statement incorporated in the opinion of the court as the grand jury statement was not the grand jury statement, but the statement taken at Lockney, where the killing occurred, not the county seat of Floyd, and could not therefore have been the grand jury statement. Second. That the state, through its officers, was so positive that this relator was connected with this offense in some way that he was warned before the grand jury that he did not have to testify at all, and need not make any statement. Third. That he was denied the privilege of consulting with counsel. Fourth. That he was not granted immunity at all.

Third. The court erred in said opinion in the following statement: "That there was no case pending against him was an admitted fact; that he had testified in regard to the same matter before the grand jury, under promise of immunity, is an admitted fact."

We most earnestly deny both propositions, and do not admit either; and, if there is a single line of testimony in the record showing either of said facts, we have failed to find it, and cannot understand where the court discovered it. There is no such admission in either the judgment of contempt or the statement of facts on file, and we presume the court feels itself bound by such record.

Fourth. The following statement in said opinion is erroneous, to wit: "In the Greenhaw and Camron Cases, supra, this case is discussed at length, and it is held that the courts in this state, under our Code have authority to give and guarantee absolute immunity to a person who may be called to testify in regard to the transaction." Previous to the Camron Case referred to, the power of the district court to even make a contract of immunity had been expressly denied. In the Holmes Case, 20 Tex. App. 517, because such power belonged to the executive department of the government, and such had always been the rule in England, and after discussing the rules obtaining under different jurisdictions, Justice Simkins, in the Camron Case, finally rests his opinion of the right of a court to make such a contract upon grounds of expediency and public policy, as shown by the following statement from said opinion: "But it would seem that the power of dealing with such agreements lies primarily with the prosecuting officer, and in Texas he may act with the consent of the court, and we can see no good reason why, when a defendant has in good faith carried out his agreement, the labor and expense to the state of a solemn trial should be incurred for the purpose of remitting the defendant to his remedy of pardon, to which it is admitted he is entitled as a matter of right."

The Camron Case was again before the appellate court, and Justice Simkins further amplified the reason upon which said opinion rested for its basis, and settled the matter beyond cavil. The following excerpt from the Camron Case, reported in 25 S. W. 288, shows that Justice Simkins did not admit that the courts of Texas had the inherent right, under the Constitution and statutes, to grant immunity, but that same was a right he had by applying to executive clemency, and it was a useless expense to put the state and defendant to a trial for the purpose of remitting him to this remedy. His statement is as follows: "In the former appeal we examined this question, and reached the conclusion, there announced, that a plea of the character here interposed is peculiarly within the province of the judge to decide, because the contract, when carried out in good faith, is the ground of obtaining a pardon after conviction, on the recommendation of the judge; and we here reach the same result by dismissing the prosecution, entering of record the reasons therefor, and thereby avoiding useless trouble and expense to the state, witnesses, and jurors."

There is not a line, word, or syllable in the Camron Case that shows, directly or inferentially, that it was based upon any provision of our Code, as stated in said opinion, but Justice Simkins, as if to settle the matter for all time to come, specifically states his reasons in the second appeal of the Camron Case, supra. The Greenhaw Case cited by the court is even stronger against the court's position. In this case, Justice Henderson, who wrote the opinion in the Park Case, 37 Tex. Cr. R. 590, 40 S. W. 301, 66 Am. St. Rep. 835, which we will hereafter refer to, wrote an opinion in the Greenhaw Case, concurred in by the entire court, in which he stated that a witness who had been promised immunity from prosecution, might "at any time before the final trial, refuse to testify against his codefendant, or testify falsely; and, under all the authorities, when he makes a breach of the contract, he is no longer entitled to immunity from punishment under it. If the rule were otherwise in a capital case such as this, applicant might contract for bail, or even for the dismissal of the case against him, to be extended before the final trial of his codefendant; and he might abscond, or he might attend, and refuse to testify, or testify falsely, and, in either event, he would have the state at a disadvantage."

Fifth. The court erred in the following statement in said opinion, to wit: "This court held that the dismissal of the cases for burglary and theft, in consideration of Young testifying, carried with it complete immunity for any matter growing out of the transaction, and he could not thereafter be prosecuted for the theft in Brazos county hereinbefore stated, reversing and dismissing the cases against Young. Thus it will be seen that our courts have construed the law to carry complete immunity from prosecution for any matter growing out of the transaction, and will not countenance or permit the prosecution of a person under such circumstances."

An examination of the Young Case, reported in 45 Tex. Cr. R. 202, 75 S. W....