I do not agree with the opinion of the majority discharging the relator, but, in my opinion, the relator should be remanded to custody. And as my dissenting opinion I adopt the brief of the late Howard Martin, Esq., Assistant Attorney-General.
Relator was summoned before the grand jury of Harris County, and refused to answer certain questions propounded to him by said grand jury, after having been admonished to do so by the district judge. His reason for refusing to answer was, that it would incriminate him. Whereupon he was adjudged guilty of contempt.
The questions propounded by the grand jury are, as follows: (The questions will not be set out here, as they are copied in full in the original opinion.)
In reply to relator's contention urged in his brief and by the able oral argument of his counsel, the State submits the following:
1. Relator's contention that the judgment is void, because no order had been entered and commitment issued at the time of his supposed illegal restraint, under the agreed facts, is not well taken. The case of Ex parte Kearby, 35 Tex.Crim. Rep., cited by him is not in point, but the case of Ex parte Latham, 11 Texas Ct. Rep., 266, recently decided by this court decides this question adversely to relator's contention.
2. The State submits that questions 1, 9, 10, 11, 12 and 13, when considered in the light of all the surrounding circumstances adduced in evidence should have been answered by relator. All of these questions relate to offenses disconnected from violations growing out of what is commonly known as the Anti-Trust law, enacted by the Twenty-Eighth Legislature. (Acts 28th Leg., p. 119.) These questions fail to show upon their face that answers to them would tend to incriminate *Page 87 relator, and no facts are shown which make it reasonably appear that if he had answered them, such answers would have incriminated him, or tended to do so. But relator contends that he was the sole judge as to whether his answering of these questions would tend to incriminate him. The State's reply is, that he was not the sole judge, that the court should look to all the environments of the witness to determine this question. In support of this contention, the court is referred to the following sections of Wharton's Criminal Evidence, section 466, "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 the exercise of 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." He further says, in 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 the 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."
In Ex parte Parks, 37 Tex.Crim. Rep., this court said: "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 contingency 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 authorities cited in the Parks case. The State, therefore, submits that when these questions, and the facts surrounding the transactions in question, are tested by the above rule, the relator was in contempt in refusing to answer the questions above referred to; and that the court properly fined him for contempt. *Page 88
3. It may be (though it is not conceded) that questions 2, 3, 4, 5, 6, 7 and 8, which relate to violations of the State Anti-Trust law, when read and construed in the light of all the circumstances as shown in this record, that the answering of them would have tended to criminate relator. But the State's reply is, that relator should have answered all of these questions, for the reason that his answers could not, under the Anti-Trust Law, section 15 thereof, have criminated him, because it provides, that "Any person so summoned and examined shall not be liable for prosecution for any violation of the provisions of this act about which he may testify fully and without reserve." If relator was exempt from prosecution by this statute, when compelled to give evidence against himself, he should have been required to testify. Of course, the exemption must be absolute. Ex parte Carter, 66 S.W. Rep., 540. But relator contends that the above quoted clause of said Anti-Trust Law is unconstitutional, for the reason that the persons so summoned and required to testify are only exempt from prosecution, when they "testify fully and without reserve." The State's reply to this insistence is, that inasmuch as it was the clear intent of the Legislature to exempt a witness from prosecution if he was required to testify under this statute, that he could not be successfully prosecuted for any transaction about which he was compelled to testify, even though he did not "testify fully and without reserve." That if the State compelled him to testify and appropriated his testimony to the benefit of the State, the State would be estopped from ever prosecuting him about matters to which it had Compelled him to testify; and that if he should be indicted, because he did not testify "fully and without reserve" in that prosecution he could defend on the ground that this clause of the statute was unconstitutional.
But relator further contends in this connection that, because the offense denounced by this statute is a felony, and therefore would bring him (the witness) into disgrace and cast odium upon him, he cannot be compelled to testify. Under the common law this contention might have been of some force. But under the rule adopted in this State it can not avail the objecting witness. McCoy v. State, 27 Texas Crim. App., 415; Owen v. State, 7 Texas Crim. App., 329.
4. The court will observe that a copy of the judgment, adjudging relator guilty of contempt filed in this record, shows that relator declined to answer each and every question propounded. Therefore, the State submits that, if relator should have answered either of said questions, and wrongfully refused to answer it, he was promptly adjudged guilty of contempt. He should have indicated which questions would have incriminated him, if in fact either would have done so. And again, if either of said questions should have been answered by relator, this court will presume that he was adjudged guilty upon a question which he should have answered, as all presumptions are with the trial judge, and the validity of his orders. *Page 89