Ferrantello v. State

• Citation: 256 S.W.2d 587,158 Tex.Crim. 471
• Decision Date: 08 October 1952
• Docket Number: No. 25818,25818
• Parties: FERRANTELLO v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 587

256 S.W.2d 587

158 Tex.Crim. 471

FERRANTELLO v. STATE.

No. 25818.

Court of Criminal Appeals of Texas.

Oct. 8, 1952.

Rehearing Denied Feb. 18, 1953.

Polk Shelton, Looney, Clark & Moorhead, C. J. Meyers, Austin, for appellant.

Price Daniel, Atty. Gen. of Texas, Les C. Procter, Jr., County Atty. Travis County, Austin, W. Hugh Lyerly, Asst. Atty. Gen. of Texas, George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is a violation of Article 5429a, Vernon's Ann.Civil Statutes; the punishment, twelve months' confinement in jail and a fine of $1,000.

The appellant was subpoenaed to appear before the Crime Investigating Committee of the House of Representatives, 52nd Legislature of the State of Texas, on June 2, 1951. He did appear and, prior to being sworn, tendered the Committee an affidavit setting forth the fact that he was then under indictment in the District Court at Dallas for the offense of operating a gambling house and the further fact that he had not been granted immunity by the District Judge of said court.

After being sworn, the appellant was asked several questions, among them being, 'Are you in the book-making business?' and 'Do you know anybody else in the book-making business?' These and other questions the appellant refused to answer on the ground that his answers might incriminate him.

It is for this failure to reply that appellant was indicted by the grand jury of Travis County.

We shall attempt to discuss the points raised by appellant's able counsel. His first attack upon the statute is grounded upon the contention that the caption thereof did not apprise the members of the Legislature and the public of the fact that the body of the Act, and particularly Section 3 thereof, granted immunity from prosecution 'for any transaction, matter of thing concerning which he truthfully testified'. The caption contains this phrase, 'providing for privilege of witnesses'. Section 3 reads as follows:

'No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of the Legislature, or by any Committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous. Any person called upon to testify or to give testimony or to produce papers upon any matter under inquiry before either House or in the Committee of either House of the Legislature of Joint Committee of both Houses, who refuses to testify, give testimony or produce papers upon any matter under inquiry upon the ground that his testimony or the production of papers would incriminate him, or tend to incriminate him, shall nevertheless be required to testify and to produce papers, but when so required, over his objections for the reasons above set forth, such person shall not be subject to indictment or prosecution for any transaction, matter or thing concerning which he truthfully testified or produces evidence, documentary or otherwise.'

We must test the sufficiency of the caption in the light of Section 35, Article III, of our State Constitution, Vernon's Ann.St., which reads, in part, as follows:

'No bill * * * shall contain more than one subject, which shall be expressed in its title.'

The reason underlying this constitutional requirement is that fraud and deception in the enactment of legislation is made less likely if the caption, which is often the only part of the bill read by busy members of the Legislature, fully apprises the members of the contents of the bill itself.

There is no dearth of authority on this question, and we have reviewed them with the above reason in mind. It is elementary to observe that the caption need not be as complete as the bill itself.

Members of the Legislature need not be lawyers, and it is a matter of common knowledge that many are not. What, then, does the word 'privilege' mean to the average man who possesses the qualifications of a legislator? Webster defines it to mean: a grant of a special right or immunity.

It must be borne in mind that we are not here construing a word of art which the Legislature had seen fit to employ in a statute but are, rather, testing whether the members of the Legislature, as a matter of fact, had notice from the caption that the body of the bill itself provided that if one were called as a witness before either House or a Committee thereof, he should not have the privilege of refusing to testify but, in lieu thereof, should be granted statutory immunity.

A great many authorities and texts have been cited by both parties, in which equally as many general expressions may be found. To discuss them would but lengthen this opinion.

We find against appellant's contention number one.

Appellant's second contention that the Act is unconstitutional is based on the fact that the Constitution of Texas, Section 15 of Article III, provides:

'Each House may punish, by imprisonment, during its sessions, any person not a member, for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not, at any one time, exceed forty-eight hours.'

while Section 2 of Article 5429a provides for the maximum penalty assessed in this case.

Great reliance is had upon Ex parte Youngblood, 94 Tex.Cr.R. 330, 251 S.W. 509, wherein we held that the Legislature was powerless to raise the maximum punishment set forth in the Constitution.

The fundamental distinction between the Youngblood case and the case at bar lies in the identity of the tribunal assessing the punishment. In the Youngblood case, the Legislature sought to impose the punishment, while in the case at bar the court set the punishment upon a verdict of the jury following a trial for the substantive offense of refusing to answer questions propounded by a legislative committee.

'The power of the Legislature of this state to make a given act penal is not limited to the permission of the Constitution and exists in all cases except where specifically forbidden by the terms of that instrument.' Reeves v. State, 88 Tex.Cr.R. 444, 227 S.W. 668, 669.

We hold it to be within the power of the Legislature to enact a law creating the substantive offense involved in this prosecution and placing the jurisdiction for its enforcement in a proper judicial tribunal. It follows that the court, rather than the Legislature, assesses the punishment, and Section 15 of Article III of the Constitution has no application.

Appellant's third contention is that he would not have gained immunity from the prosecution pending against him in Dallas if he had answered the questions propounded to him, because the act in question is unconstitutional as an invasion of the functions of the judicial branch of the government. That is, he contends that, once the District Court at Dallas acquired jurisdiction over the appellant, any effort on the part of the Legislature to grant him immunity would be futile, because it would constitute a violation of the division of the powers of government set forth in Section 1 of Article II of our Constitution. Stated in another way, appellant contends that such would be an encroachment upon the jurisdiction of the court to try the case pending on its docket.

Appellant's reasoning appeals to the natural desire of a judge to guard the prerogatives of his branch of the government, but we can assert no greater power than the Constitution grants us. The right of a district court to grant immunity is statutory and not constitutional.

Section 3 of Article 5429a does not affect the constitutional jurisdiction of the district court but would have given to appellant, had he truthfully answered the Committee's questions and incriminated himself in connection with the pending case, a defense which he might have interposed upon the trial of such case.

In Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 781, we said, 'If restricted to the granting of immunity before conviction, the statute is not obnoxious to the Constitution; there being no infringement of the pardoning power.'

To our minds, the fact that a court has acquired jurisdiction by virtue of pendency of an indictment therein does not alter the general rule or in anywise limit the power of the Legislature to make provision for immunity of the one charged.

It is wise for the courts to remember, when passing upon any question concerning the power of the Legislature, that they might, to cite a fanciful illustration, meet tomorrow and abolish the offense of murder and that such act would be constitutional. The question before the courts is the power of the Legislature and not the wisdom of its acts.

Appellant's fourth contention is that the evidence is insufficient to support the conviction in that the State failed to prove that the Committee was in session and that a quorum was present at the time the appellant was questioned.

The witness Meridith testified that the House Crime Investigating Committee had a hearing in the Court of Criminal Appeals courtroom on June 2, 1951, and that the appellant, in answer to a subpoena, appeared before that Committee.

This disposes of appellant's contention that there was no proof that the Committee was in session.

Appellant's second contention that there was no proof that a quorum of the Committee was actually in attendance at the moment the questions were propounded to him and he refused to answer presents a more difficult problem.

The Supreme Court of the United States, in Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826, reversed a conviction of perjury where the question of a presence of a quorum of the Committee at the time the false testimony was alleged to have been given was raised for the first time on the trial.

No question was raised in the trial of this case as to the presence of a quorum of the Committee. Appellant...