Griffin v. State, 66 S.W. 782 (1902).
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Griffin v. State, 66 S.W. 782 (1902). Book View Copy Cite
⚠ Negative Treatment Overruled 1 negative, 1 positive ▼
L. M. Griffin
v.
the State
Feb 12, 1902.
66 S.W. 782
Cleveland Haynes, for appellant. — The defendant was indicted by a grand jury of Johnson County for a violation of the gaming laws, and the testimony shows that he played at a game with cards at a gaming house, but on the trial of the case defendant plead not guilty and that he was exempt from prosecution, for the reason that he had been compelled by the grand jury to give testimony about the particular transaction for which he was being prosecuted. The court refused to permit any testimony whatever introduced, either by the members of the grand jury knowing the facts or by the defendant himself; and no testimony was permitted to be introduced as to what took place in the grand jury room when the defendant was before that body. For this action of the court in refusing to permit testimony as to what took place in the grand jury room, the defendant assigns error, and brings this case before this court for review. The defendant was summoned before the grand jury and compelled to testify, as shown by the testimony of the witnesses J.J. Rogers and H.C. Floyd, and also the testimony of defendant. As shown by bills of exception 1 and 2, these three witnesses would have testified that the defendant was compelled to testify about the particular transaction for which he is at present being prosecuted, and this testimony was admissible. Wisdom v. State, 61 S.W. Rep., 926. Had this testimony been admitted it would have shown that the defendant was exempt from prosecution, as the laws exempts the defendant from prosecution under such circumstances. Willson's Crim. Stats., art. 391. The burden is upon the defendant to show that he testified about the very act for which he is being prosecuted when he claims such exemption. Kain v. State, 16 Texas Crim. App., 282. We submit to the court that although the law places the burden upon the defendant to show that he is exempt, still the law does not refuse him the right to relieve himself of that burden by legal and competent evidence; and if it does, it is more onerous than \the white man's burden.\"
Davidson.
DAVIDSON, Presiding Judge.

Appellant was convicted of gaming, and fined $10.

[*432] The charging part of the indictment is as follows: “Did then and there unlawfully play at a game with cards in a public place, to wit, a gaming house.” The motion to quash on the ground of insufficiency is-not well taken. Thorp v. State, 42 Texas Crim. Rep., 231.

The first bill of exceptions is reserved to the refusal of the court-to permit appellant to prove by himself and other witnesses that he was summoned before the grand jury and testified in regard to this transaction, and gave information and testimony in regard to violations of the gaming laws, and especially this particular occurrence, in which game-defendant himself engaged. The State’s objection to the introduction of this testimony was that the grand jurors were not permitted to testify as to the transaction and this evidence before that body. The court, explains this bill by stating that the witnesses Floyd and Rogers on preliminary examination by the State testified that at the time defendant was before the grand jury the indictment herein had been returned, and the State’s attorney admitted that at the time defendant testified before-the grand jury he had not been arrested in this case, and knew nothing of the indictment against him. The objection urged by the State’s attorney should have been overruled. Wisdom v. State, 42 Texas Crim. Rep., 579; Penal Code, art. 391. This article provides: “Any court, officer or tribunal having jurisdiction of the offenses enumerated in this-chapter or any district or county attorney may subpoena persons and compel their attendance as witnesses to testify as to violations of any of the provisions of the foregoing articles. Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify and for any offenses enumerated in this chapter a conviction may be had upon the unsupported evidence of. an accomplice or participant.” Kain v. State, 16 Texas Crim. App., 282; Day v. State, 27 Texas Crim. App., 143; Wright v. State, 23 Texas Crim. App., 313. And it would make no difference whether the grand jury had returned the bill or was simply examining into the transaction. If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the State, it exonerates the witness whose testimony is used by virtue of the terms of the statute. Nor does it make any difference at what stage of the investigation or trial the evidence of the participant is used. The grand jury may not have been satisfied that the evidence upon which the bill was returned was sufficient to justify a conviction, but, if they had been, still, under the terms of the law, the use of the testimony of one of the participants exonerates him from prosecution. In cases where indictments have been returned, and one of the indicted parties is used as a witness for the State, this would exonerate, even though he be one of the indicted parties. Article 391, supra, was enacted for the purpose of forcing witnesses to testify in behalf of the State. He can not plead that rule of evidence which does not permit a witness to incriminate himself, because when he testifies he is exonerated from punishment, and the incriminating testimony can never be used against him. The mere fact that [*433] the participant is required to testify for the State exonerates him from punishment, and it is wholly immaterial whether it is before the arrest of himself or any of the parties, or subsequent to their arrest. See authorities supra. This testimony should have been admitted; and if, as contended, he was used by the grand jury as a witness in the examination of the case then upon trial, and gave testimony in behalf of the State, as he offered to prove, appellant is, entitled to his discharge.

The judgment is reversed, and the cause remanded.

Reversed and remanded.