Floyd v. State

• Decision Date: 01 January 1851
• Citation: 7 Tex. 215
• Parties: FLOYD v. THE STATE.
• Court: Texas Supreme Court

7 Tex. 215

FLOYD

v.THE STATE.

Supreme Court of Texas.

1851.

The 1st section of the act regulating appeals to the Supreme Court in criminal cases, while it gives the right to appeal generally, makes an express exception of cases of contempt of court. There can be no question that, under the 3d section of the 4th article of the Constitution, the Legislature had the power to make this exception. (Note 31.)

It is the province of the court to judge whether any direct answer to a question which may be proposed may furnish evidence to convict the witness of a crime. If it may, the witness himself must judge what his answer will be; and if he say, on oath, that he cannot answer without accusing himself, he cannot be compelled to answer.

Where a statute prescribes that a witness shall be exempt from liability for any offense of which he is compelled to give evidence, he cannot claim the privilege of not answering, ordinarily incident to such a case; so, if the offense, as to himself, is barred by the statute of limitations.

Appeal from Leon. An order was entered in the District Court, that the appellant should be fined and imprisoned for a contempt of court, in refusing to answer questions, as a witness, before the grand jury, respecting instances of violation of the act to punish gaming.

E. Hendree, for appellant. The only question presented by the record is, whether the witness had the right to judge of the tendency of his own response.

In support of the affirmative of this proposition, the following cases are cited: 2 Phil. Ev., 418; 1 Johns. R., 498; 1 Cr. R., 144; 6 Cow. R., 254; 2 Hawk., 580;2 N. & M., 13; 3 U. S. Dig., 712; 13 Johns. R., 82; 4 Wend. R., 229; 24 Pick. R., 366; 12 Verm. R., 491; 19 Wend. R., 569; 5 Monr. R., 212; 6 Blackf. R., 439; 10 Ohio R., 336.

Attorney General, for appellee.

WHEELER, J.

The record discloses that the appellant was fined and imprisoned for a contempt committed in refusing to give evidence before the grand jury, from which judgment he appealed.

The 3d section of the 4th article of the Constitution of the State provides, that “the Supreme Court shall have appellate jurisdiction only, which shall be coextensive with the State; but in criminal cases and in appeals from inter-locutory judgments, with such exceptions and under such regulations as the Legislature shall make.”

The 1st section of the act regulating appeals to the Supreme Court in criminal cases, (Hart. Dig., art. 468,) while it gives the right of appeal generally, makes an express exception of cases of contempt of court. It is as follows: “The defendant to any indictment or prosecution for any criminal offense, in the District Courts of this State, shall have the right of appeal to the Supreme Court, except in cases of contempt of court.”

There can be no question that, under the constitutional provision cited, the Legislature had the power to make this exception.

The consequence is, that the present being the case of a contempt of court, of a criminal nature, no appeal lies, and no jurisdiction is confided to this court to revise the judgment. (In the case of Ex parte Kearney, (7 Wheat. R., 38; 5 Cond. R., 225,) it was held, that the punishment, by imprisonment, of a witness for a contempt committed in refusing to answer questions, on the ground that his answers would tend to criminate himself, being a criminal case, was not within the appellate jurisdiction of that court. And they refused a habeas corpus, on the ground of a want of jurisdiction--it appearing that the party had been committed for a contempt by a court of competent jurisdiction. (And see Yarborough v. The State, 2 Tex. R., 519.) “The argument of inconvenience, the court said, has been pressed upon us with great earnestness; but where the law is clear, this argument can be of no avail; and it will, probably, be found that there are also serious inconveniences on the other side. Wherever power is lodged, it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the Legislature, and is not to be devised by courts of justice.” (5 U. S. Cond. R., 228.)

The justice of these observations must be acknowledged. We do not intend to intimate that the power confided to the District Court has not been judiciously and wisely exercised in this instance.

As the question of the exemption of a witness from answering questions having a tendency to criminate...