
    Ex parte COPELAND.
    (No. 6934.)
    (Court of Criminal Appeals of Texas.
    March 29, 1922.
    Rehearing Denied April 26, 1922.)
    1. Witnesses <&wkey;306 — Answer must incriminate witness to be withheld as incriminating.
    An answer may not be withheld as incriminating unless it would incriminate the person to whom the question is addressed.
    2. Witnesses &wkey;>308 — Whether answer would incriminate witness is within discretion of judge.
    The naked assertion of a witness that an answer would tend to incriminate him does not entitle answer to be withheld, but the incriminating nature thereof must appear to the court; the question being one for the discretion of the judge.
    3. Criminal law <&wkey;ll 144(17) — Lower court’s judgment upheld until shown erroneous.
    The Court of Criminal Appeals will uphold the correctness of the judgment of the trial court until shown erroneous.
    4. Witnesses &wkey;>297 — Refusal to permit witness before grand jury to withhold answers to questions on ground that they would incriminate him held proper.
    Where witness, before grand jury investigating the tarring and feathering of a person who had refused to heed warning on Ku Klux Klan stationery, stated that he had no connection therewith or knowledge thereof, refusal to permit witness to withhold answers to questions as to his connection with the Ku Klux Klan on the ground that the answers would incriminate him, in violation of Const, art. 1, § 10, held proper
    Original ex parte application for writ of habeas corpus by J. D. Copeland.
    Writ denied, and relator remanded to custody.
    Douglas & Carter, of San Antonio, Lon Curtis, of Belton, and Hart & Patterson, and Garrett, Brownlee & Goldsmith, all of Austin, for appellant.
    J. B. Robertson, Dist. Atty., of Austin, and R. G. Storey, Asst. Atty. Gen., for the State.
   ' LATTIMORE, J.

By an order of the criminal district court of Travis county, relator was adjudged in contempt of said court by reason of his refusal to answer certain questions propounded to him by the grand jury of said county; he having been directed by said court to answer said questions and having refused so to do.

No question has been raised of the fairness or legal manner and form of any procedure antecedent to the entry of such judgment of contempt, and we are thus relieved of any need for discussion of these matters, and are brought at once to the substantial contentions made by relator. No question is raised in the brief of relator of the fact that the matters under investigation were properly within the scope of a grand jury inquiry, and only those of the subjects of the investigation will be mentioned as may be necessary to clarify our opinion.

Letters had been mailed and delivered in Travis county, Tex., to various parties, among them one Jeadie Janes, in which the parties addressed were admonished to refrain from certain lines of conduct such as bootlegging, gambling, associating with prostitutes, etc.; most of said letters concluding with some statement to the effect that no further warning would be given, and some of them, as in the case of Janes, ordering the recipients to leave Travis county or suffer the consequences. All of said communications were on stationery with a lithographed letter head, upon which appeared the following:

“Knights of the Ku Klux Klan, Capital City Lodge No. 81, Austin, Texas. Printed by the Ku Klux Klan Press, Atlanta, 6a.”

None of said communications were signed, but each bore the imprint of a seal upon which was the following inscription: “Knights of the Ku Klux Klan. Capital City Lodge No. 81, Austin, Texas.” Janes paid no attention to said communication. Shortly after its receipt by him, he was seized on a street of Austin, Tex., by a group of men, forcibly placed in a car, and carried to a point outside of the city limits, and there asked if he had received the communication above mentioned, to which he replied in the affirmative, and also stated, in answer to further questions, that he did not know why he had not heeded its warning. His clothing was then removed from the upper part of his body, and he was severely whipped and a coat of tar and feathers applied, and he was brought back to said city and set at liberty on a public street thereof.

That the grand jury was properly investigating the above matters with others, and that same constituted offenses against the laws of the state of Texas, and that the answers to the questions asked were material, would seem to be without question. The record shows that relator, while a witness before said inquisitorial body, was asked the following questions:

1(a) Are you a member of the Ku Klux Klan of Austin or Travis county, Tex.?

(b) Have you ever attended meetings of Ku Klux Klan of Austin or Travis County, Tex.?

(c) What persons have you seen at those meetings which you have attended?

(d) Give the names of all members of the Ku Klux Klan in Travis county, Tex.

(e) Who are the officers of the Ku Klux Klan in Austin or Travis county, Tex.?

Relator refused to answer said questions and each of them, upon the ground that the answers would tend to criminate him. Thereupon the state, through its district attorney and with the approval of the district judge, evidenced by an order fully reciting the matters of such interrogation and duly, entered of record, promised and guaranteed to relator complete immunity from prosecution for any offense connected with the matters so asked about or that might be ascertained as the result of his answers to said questions. In this connection the record discloses that relator also admitted and stated that he had no personal connection with or knowledge of the sending of any of said letters or the transaction wherein said Janes was treated as above set forth, or any of the other matters before said grand jury at the time of any of such occurrences or prior thereto. When offered immunity, relator raised the question of the scope and extent of the power of the state to grant him immunity from federal as well as state prosecution for any offense involved; affirmed his refusal to accept any proffered contract to testify in return for such offered immunity; also his right to determine that said answers would incriminate him; and further declined to answer any of said questions, which action on his part was followed by the judgment of contempt, from restraint under which relief is here sought.

Certain questions arise under the above facts, which are before us without dispute. Would the answers of relator incriminate him? If so, could the state, after offer of immunity, which was not accepted by relator, compel him to answer? Would the state’s guaranteed immunity extend to relator’s protection also from federal prosecution if this were involved?

Reverting to the first question just stated, it is clear that, if a given answer does not involve that which incriminates the person to whom it is addressed, such answer may not properly be withheld. We are discussing a case involving only the objection to giving such answer, that it would incriminate.

Who is to decide whether the answer so withheld is or would be incriminating? In Ex parte Park, 37 Tex. Cr. R. 594, 40 S. W. 301, 66 Am. St. Rep. 835, this court said:

“Was the question of such a character, under the conditions then surrounding the defendant, as to other offenses of like character then pending against him, as would tend to criminate him as to said offenses? 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 tangible 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, Ex parte Irvine, 74 Fed. 954, which is an exhaustive discussion of this question, and the authorities there cited; Fries v. Brugler, 12 N. J. Law, 79, reported in 21 Amer. Dec. 52 and note thereto on page 57; People v. Mather, 4 Wend. 229, reported in 21 Amer. Dec. 122, and authorities cited in note thereto. We quote from Whar. Grim. Ev. § 488, as follows: ‘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 exercising 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.’ Mr. Wharton further says (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 in-culpatory 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 his 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.’ And see authorities cited in notes to said sections. This rule has been followed in this state. See, Floyd v. State, 7 Texas, 215. After the court has determined from the environments and the nature of the case, so far as stated, that the answer of the witness might tend to criminate him, it is then the province of the witness to state whether or not a truthful answer to the question asked would tend to criminate him. See authorities, supra.”

As far as we know, the correctness of this announcement has not been questioned by this court, and, indeed, we think cannot be. Manifestly a claim that an answer is refused because criminating cannot be held as established by the naked assertion of such fact; and it is equally plain that to leave this matter to the ipse dixit of a witness, who for one or all of many motives might not wish to give evidence, would be to withhold from the state all testimony of friends of the accused, or those who might be interested in defeating the ends of justice. In Ex parte Irvine (C. C.) 74 Fed. 960, Judge William H. Taft uses the following language:

“The second question is whether the statement of the witness,that his answer to the question' would criminate him was conclusive, so that the court could not compel an answer thereto. The great weight of authority, as well as a due regard for the right of the community to have the wheels of justice unclogged, as far as may be consistent with the liberty ,of the individual, leads us to reject the doctrine that a witness may avoid answering any question by the mere statement that the answer would criminate him, however unreasonable such statement may be. The true rule is that it is for the judge before whom the question arises to decide whether an answer to the question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of evidence necessary to convict him of a crime. It is impossible to conceive of a question which might not elicit a fact useful as a link in proving some supposable crime against a witness. The mere statement of his name or of his place of residence might identify him as a felon, but it is not enough that the answer to the question may furnish evidence out of the witness’ mouth of a fact which, upon some imaginary hypothesis, would be the one link wanting in the chain of proof against him of a crime. It must appear to the court, from the character of the question, and the other facts adduced in the ease, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime. Mr. Wharton, in his work on Criminal Evidence (section 466), says:
“‘We have several rulings to the effect that a witness cannot be compelled .to give a link to a chain of evidence by which his conviction of a criminal offense can be furthered. This proposition, however, cannot be maintained to its full extent, since there is no answer which a witness could give which might not become part of a supposable concatenation of incidents from which criminality of some kind might be inferred. 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 presently be seen, is not 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 exercising 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.’
“In section 469 of the same work it is stated that the witness is not the sole judge of his liability. The liability must appear reasonable to the court, or the witness wil be compelled to answer. Numerous eases are cited in the notes in support of the proposition as stated in the text.”

The opinion of Chief Justice Marshall, of the Supreme Court of the United States, in the celebrated trial of the United States v. Burr, 25 Fed. Cas. p. 38, No. 14692E, establishes the correctness of this principle beyond controversy.

So we are in no doubt on the question that the court before whom the contemner refuses to answer must determine in the first instance the soundness of the contention that the answer would show or tend to show the witness penally connected with a crime. The trial court, in the instant case, has decided against relator. •

The correctness of the decision of the lower court in this regard may be disputed by the witness, in which ease he may' bring his contention to a higher tribunal for review; but certainly well-known rules require this court to uphold the correctness of the judgment of a.trial court until in some sufficient way it be shown that such ruling was erroneous. Applying this reasoning to the facts of the instant case, we are forced to conclude that the judgment of the court a quo seems not only not contrary i’n the facts but to be entirely supported by them. The trial court was not left in doubt' as to relator’s criminal connection, either with tjie sending of the letters in question or the whipping of Janes, or any of the other matters being investigated, for relator,' seemingly unafraid, positively affirmed that he had nothing to do with such transactions, and knew nothing of their being in plan or purpose until after same were consummated. The trial court would in no event be compelled to decide favorably to 'him, upon relator’s unsupported affirmation that his reason for declining to answer a question was because the answer would tend to criminate him. Section 10 of our Bill of Bights guarantees to every citizen that he shall not be required to give evidence against himself, but he who invokes its shelter must offer substance and not shadow; must present facts and not fancies. Nothing was presented by relator save his unsupported affirmation that the answers would criminate him.

In arriving at his decision in this instance, the court below was backed and justified therein by the positive declaration of relator that he had no criminal connection with the matters under investigation. What then? Can relator refuse answers whose effect would criminate others? Clearly not so. As is said in a note to McGorray v. Sutter, 24 L. R. A. (N. S.) 169:

“The privilege against self-crimination cannot be put forward for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person who is interested in concealing the facts to which he would testify. Brown v. Walker, supra; United States v. Collins, 145 Fed. 709; People ex rel. Akin v. Butler Street Foundry & Iron Co., 201 Ill. 236, 66 N. E. 349; State v. Duffy, supra; Re Moser, 138 Mich. 302, 101 N. W. 589, 5 A. & E. Ann. Cas. 31; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253, 68 N. E. 353.”

We are unable to see upon what ground relator can support the proposition that he refused to answer because such answers would tend to criminate him, when immediately he declares that he had no criminal .connection with any of the matters inquired about.

With reference to the proposition of whether relator might refuse to answer said questions after being guaranteed immunity, we observe that in the Bill of Bights it is declared that one accused of crime shall not be compelled to give evidence against himself. Const, of Texas, art. 1, § 10. The courts have always respected this mandate, but have uniformly held that it was not violated by compelling one to give incriminating testimony against himself when, by adequate authority, he was given immunity from prosecution. We have statutes granting immunity. Speaking of one of these, this court says:

The statute “was enacted for the purpose of forcing witnesses to testify in behalf of the State. He cannot 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 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.” Griffin v. State, 43 Tex. Cr. R. 432, 66 S. W. 782.

It bas long been the practice to extend immunity through the action of the district attorney with the sanction of the trial judge. Immunity so extended has uniformly been held binding upon the state. Young v. State, 45 Tex. Cr. R. 202, 75 S. W. 23; Camron v. State, 32 Tex. Cr. B. 180, 22 S. W. 682, 40 Am. St. Rep. 763; Barrara v. State. 42 Tex. 260; Bowden v. State, 1 Tex. App. 143; Fleming v. State, 28 Tex. App. 234, 12 S. W. 605.

The point is here raised that, while the state may be bound by appropriate action of the district attorney and the trial court, it is not competent for the court to compel one to give the testimony under such a guaranty, but that, notwithstanding the immunity thus tendered, he would have the right to maintain his silence. This view was rejected by this court in Hughes v. State, 62 Tex. Cr. R. 289, 136 S. W. 1068; Ex parte Napoleon, 65 Tex. Cr. R. 307, 144 S. W. 269; Ex parte Higgins, 71 Tex. Cr. R. 618, 160 S. W. 696; Ex parte Muncy, 72 Tex. Cr. R. 541, 163 S. W. 29. In these cases, it was held that by virtue of the statutes of this state, it was within the power of the district court to compel one to testify, although his testimony tends to show that he had transgressed the criminal laws of the state, where he was guaranteed immunity by the promise of the district attorney with the sanction of the trial judge duly entered of record. The soundness of the contention that one guaranteed Immunity by statute may be compelled to give .testimony, but one guaranteed immunity by tbe court may not be so compelled, is not apparent. It is combatted in tbe case of Ex parte Muncy and others, to which reference has just been made. If the ■Constitution guarantees the right to keep silent though immunity be tendered, it would seem that such right would prevail against •a statute as well as against a court. A right founded upon the Constitution would be equally invulnerable against either a statute or a court. The converse is also true, ■and an admission that the right must yield to immunity when tendered by virtue of a statute would seem to concede that it would equally yield when tendered by any ■other instrument of government having authority to bind the state. The purpose of immunity is to protect the accused in his constitutional privilege against subjecting himself to prosecution resulting from his own disclosures, and at the same time secure for the state the benefit of such testimony. 28 Ruling Case Law, § 27, p. 440. 'That the completeness of this protection removes the privilege of silence is exemplified in the declaration of Presiding Judge Davidson, of this court, in writing the opinion in the case of Griffin v. State, 43 Tex. Cr. R. 432, 66 S. W. 783, referring to a statute, wherein he said:

“He cannot 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.”

This was said in a case where a statute' was under consideration, but a like declaration is found in the case of Camron v. State, 32 Tex. Cr. R. 183, 22 S. W. 682, 40 Am. St. Rep. 763, with reference to an immunity extended by a court. In either case, the immunity being complete, the reason for silence contemplated by the Constitution fails. The witness being fully protected, danger from disclosure no longer exists. This much we have said in view of the argument of the counsel for relator, though the conclusion we reached upon the first proposition discussed would seem to obviate the necessity, and perhaps the propriety of discussing the constitutional question at all. This we say for the reason that the questions propounded to the relator, not being such as could, under the facts revealed by the record, elicit any testimony tending to incriminate him, he is not interested in whether the court might, in a given and proper case, compel one to give incriminating testimony against himself.

The further reason urged that relator should not answer the questions because the state court and district attorney had no right to guarantee immunity from federal prosecution has such a shadowy and uncertain basis that we scarcely deem it necessary to discuss it.

“The constitutional protection against self-incrimination ‘is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.’ ” Mason v. U. S., 244 U. S. 362, 37 Sup. Ct. 621, 61 L. Ed. 1198, and cases cited.

In Mason’s Case, supra, we find the following quotation also:

“We are of the opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things — not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.”

If the question is raised by the record before us, we think the cases of Jack v. Kansas, 199 U. S. 372, 26 Sup. Ct. 73, 50 L. Ed. 234, 4 Ann. Cas. 689; Hale v Henkel, 201 U. S. 68, 26 Sup. Ct. 370, 50 L. Ed. 652, and Brown v. Walker, 161 U. S. 597, 16 Sup. Ct. 644, 40 L. Ed. 819, settle it adversely to relator’s contention, and that “immunity” must be in regard to a prosecution in the same jurisdiction, and, when same can be and is fully given, it is enough. 28 Ruling Case Law, p. 442.

Eor the reasons above set forth, the relief prayed for must be denied, and relator will be remanded to the custody of the respondent as under the judgment of the district court of Travis county.

Judges all present and concurring. 
      ©soFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     