
    JOHNSON v. STATE.
    (No. 11096.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    1. Criminal law &wkey;> 1092(11) — Where bill of exceptions Is Improperly qualified over objection o-f party presenting It, judge’s qualification cannot be considered.
    Judge has no authority to qualify bill of exceptions over objection of party presenting it to him, and, where bill is thus improperly qualified, qualification cannot be considered.
    2. Criminal law <&wkey;42 — Excluding testimony under plea of immunity that defendant had been required to- testify before grand jury relative to transaction involved held error (Pen. Code 1925, art. 694).
    In prosecution for possessing liquor for purpose of sale, refusal to permit, under defendant’s plea of immunity, introduction of testimony showing he had been required to testify before grand jury as to transaction for which he was being tried held error, under Pen. Code 1925, art. 694, providing no person required to testify against others charged with liquor law violations shall be punishable for acts disclosed by such testimony.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    Demos Johnson was convicted of possessing intoxicating liquor for tbe purpose of sale, and be appeals.
    Reversed and remanded.
    Sanders & Sanders, of Center, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; tbe punishment, confinement in tbe penitentiary for one year.

Officers discovered more than a quart of liquor in tbe possession of appellant. He • filed a plea of immunity, contending that be was carried before the grand jury, under process, and forced to testify to incriminating facts, without warning, and that, be testified fully to such facts, furnishing material facts wbicb were used in finding and returning the indictment against him.

It is shown’by bill of exception No. 5 .that appellant testified on tbe trial of his case that be was summoned by tbe grand jury and taken before said body by a bailiff; that be was asked if be was carried before tbe grand jury and sworn as a witness; that the state objected to the testimony as immaterial, and tbe court sustained tbe objection; that be was then asked if he was required and forced to testify concerning the offense for wbicb be was then on trial; that tbe objection of the state was again sustained; that, if be bad been permitted to testify, bis testimony on the point in question would have been as follows:

“Yes; in obedience to said summons from said grand jury of Shelby county, Tex., at the October term, 1925, of the district court of Shelby county, Tex., I was carried before said grand jury and there sworn as a witness, and required to testify about the transaction wherein I am now on trial. I was not warned at any time. I was asked about the offense for which I am now on trial, and I furnished to the grand jury information that tended to incriminate me, and furnished to the grand jury facts and testimony which disclosed acts of which I was guilty, about me possessing intoxicating liquors on the date as charged in the indictment in this cause, wherein I am now on trial for possessing intoxicating liquors, as charged in the indictment. I kept from the grand jury nothing about this charge and offense, but told them all about it.”

Tbe court refused to submit tbe issue of immunity to tbe jury, and struck tbe plea from tbe record. There is appended to tbe bill of exception a qualification. Appellant objected and excepted to sucb qualification, wbicb action was authenticated by tbe trial judge. Tbe bill being qualified over objection, tbe qualification cannot be considered. Tbe judge bas no authority to qualify a bill over objection of a party presenting it to him. Stapleton v. State, 107 Tex. Or. Rep. 596, 298 S. W. 578. It follows that tbe qualification cannot be taken into consideration in determining whether error is presented by tbe bill.

Article 694, P. O. 1925, provides:

“No person shall be excused from testifying against persons who have violated any provision of this chapter [chapter on intoxicating liquor] for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.”

It was appellant’s right to defend on the ground that he had been required to give testimony to the grand jury under the conditions described by the foregoing article. If the testimony had developed a controversy touching the matter, the court would have been required to submit the issue to 'the jury for determination. The learned trial judge fell into error in declining to permit appellant to support his plea of immunity by testimony. Lewis v. State, 103 Tex. Cr. Rep. 64, 270 S. W. 828; Dunagan v. State, 102 Tex. Cr. Rep. 404, 278 S. W. 432; Douglas v. State, 99 Tex. Cr. Rep. 413, 269 S. W. 1041.

For the error discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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