
    Robert Hardin v. The State.
    1. State’s Evidence — Estoppel.—When the State by her officers has stipulated with a defendant to enter a nolle prosequi of the charge against him if he would become a witness for the State against his confederates, and he performs his part of the agreement, he is entitled to have it enforced in the court where the prosecution is pending. To prosecute him in disregard of the agreement, and leave him to rely on the pardoning power, is not in good faith nor in compliance with the agreement.
    3. Same.—Appellant was arrested for horse-theft and taken before a justice of the peace, who, in the absence of the regular iwosecuting officer, appointed an attorney to represent the State at the examining trial. The prosecution being about to collapse for want of evidence against the appellant, the counsel for the State, with the approval of the justice, agreed with appellant to dismiss the case if he would become State’s evidence against one S., who he said was a 2>urtice2is criminis. In pursuance of the agreement the appellant swore out a warrant against S., who, on appellant’s testimony, was held to bail. At the next term of the District Court the appellant testified before the grand jury against S., but no indictment was presented against the latter. At appellant's trial for the theft he filed a special plea setting up the above stated facts, but the trial court overruled the plea on a demurrer to it filed by the district attorney, who was not a party to the agreement with the appellant. Held, that the allegations of the special idea, if true, estopped the State from further prosecuting the case against the appellant, and it was error to sustain the demurrer to his plea.
    Appeal from the District Court of Hopkins. Tried below before the Hon. G. J. Clark.
    A term of ten years in the penitentiary was the punishment awarded the appellant. Everything relevant to the rulings of this court appears in the opinion.
    
      Hunter, Putnam & Crawford, for the appellant.
    
      H. Chilton,. Assistant Attorney General, for the State.
   Hurt, J.

The appellant Hardin was convicted of the theft of a horse. By way of estoppel, the appellant interposed, in a written plea, these facts: “And now comes Bobt. Hardin, defendant herein, and says the State ought not to prosecute this indictment against him, because he says that heretofore, to wit, on the 12th day of December, 1881, he, defendant, and one George Simpson were duly arrested by virtue of a warrant issued by J. W. Crabtree, a justice of the peace, in and for Hopkins county, Texas; and on the 16th day of December, 1881, put upon trial for the theft of the same horse, the same being the horse that this defendant is herein charged with stealing; and defendant says that Seth W. Stewart, an attorney at law, was duly appointed by the court, in the absence of the county attorney, to represent the State in said cause, and the said Seth W. Stewart, acting for the State as aforesaid, finding that the parties had been arrested only on suspicion, and there being positively no evidence upon which to base a conviction; and believing that the said George Simpson was really the guilty party if either wás, and that the cáse could not be made out against him (Simpson) without the evidence of this defendant, after a consultation with the justice of the peace and with W. B. Leach, counsel appointed by the court for this defendant,' the said Stewart made an agreement with this defendant (Hardin) that he, the said Stewart, would enter a nolle prosequi in the case as to this defendant, if defendant would well and truly testify as a witness for the State in the case against the said George Simpson, and honestly and fairly tell all he knew about the case; and defendant says that this proposition was accepted by him, and that he did testify fairly on said examining trial before Justice of the Peace J. W. Crabtree; and defendant further says that when he was brought out of the jail into court to testify in said case that the said justice of the peace did then and there tell him that if he would then honestly, faithfuEy and truly -tell all he knew about the case, that he would be exempt from further prosecution; and defendant says, in pursuance of this agreement, and relying upon the promise made him by the State’s officers, that he, defendant, promptly testified in the case against his co-deféndant, George Simpson, and fairly and honestly told all he knew about the case. And defendant says that the said George Simpson was held on his evidence to await the action of the grand jury in said case, and that he, defendant, was held in custody, as he thought, as a witness for the State in said cause; and defendant says that he was carried before the grand jury in this case and fairly and honestly and truly told them all he knew about the case, and has never refused at anytime to testify in the case; telling all he knew, keeping-back nothing; and defendant says, notwithstanding he has been always ready and willing to testify in the case, that he, defendant, is now charged and held to answer the State of Texas in this indictment for the theft of the same horse that he, defendant, and his co-defendant George Simpson was charged with stealing as aforesaid; whereupon defendant enters this, his special plea, and says that the State ought not further to prosecute this case against him.”

To this plea the district attorney demurred, and the court sustained the demurrer; to which the defendant excepted. We are aware that the great weight of authorities is to the effect that this plea cannot be interposed, hut that the defendant must look to executive clemency. This, we think, is not correct in principle. If the State, through her officers, makes a solemn compact with her citizen, this contract should be enforced in the courts, in exact compliance with its terms. The agreement or contract (the defendant complying faithfully with his part) is in effect that the defendant should not be prosecuted. Upon what principle of justice is he driven from the court to his excellency the governor for an enforcement of this compact ? We are of the opinion that common honesty and public justice demand that when such a contract is made and the party faithfully complies, as far as is within his power, the court in which the breach is attempted should interpose and prevent the breach by enforcing the contract, and should not drive the party out of the court to seek relief elsewhere. The principles, enunciated in Bowden v. State, 1 Texas Ct. App. 137, we think are sound.

The court erred in sustaining the demurrer to this special plea; for which the judgment is reversed and the cause remanded.

jReversed and remanded.  