
    Ex parte BARNES.
    (No. 3118.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    Rehearing Denied May 13, 1914.)
    1. Habeas Corpus (§ 86) — Application— Evidence.
    An application for writ of habeas corpus for the discharge of relator is merely a pleading, and, in the absence of any evidence of the truth of the allegations of the application, relator must be remanded.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§'77, 78; Dec. Dig. § 85.]
    2. Grand Jury (§ 36) — Witnesses—Refusal to be Sworn — Effect.
    . One who, when summoned before the grand jury, refuses' to be sworn, and who, when brought before the district judge, again refuses to be sworn and answer an'y question, or to affirm in any way, is guilty of contempt of court, authorizing confinement in jail until she will take the .oath required by law, in the absence of any proof that her refusal was on account of any religious or other convictions.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §.§ 75-78;. Dec. Dig. § .36.]
    3. Grand Jury (§ 36) — Privilege of Witnesses — Answer Tending to Subject Witness to Criminal Prosecution.
    . That a person summoned before the grand jury refused to be sworn to testify because she presumed that she would be questioned about alleged incestuous relations between herself and her father did not excuse her for her refusal to be sworn, but, after being sworn, she would be justified in refusing to answer questions relating to the subject.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 75-78; Dec. Dig. § 36.]
    4. Witnesses (§ 303) — Privilege of Witnesses — Answer Tending to Subject Witness to Criminal Prosecution — Immunity.
    Where, on the refusal of a witness summoned before the grand jury to be sworn on the ground that she presumed she would, be questioned concerning a crime committed by her and another, the district attorney, with the sanction and approval of the district judge, tendered her immunity from prosecution as to any matter about which she might testify, she could be compelled .to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent, Dig. §§ 1049, 1050; Dec. Dig. § 303.]
    Habeas corpus by Lottie Belle Barnes for her discharge from custody.
    Relator remanded.
    John R. Storms, of Ft. Stockton, and Edwin F. Vanderbilt, of San Antonio, for appellant. W. C. Linden, Dist. Atty., of San Antonio, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Relator, having been refused a writ of habeas corpus by the district courts in Bexar county, applied to this court and was granted a writ, and the hearing set for April 15th.

On that day relator’s attorney and the district attorney appeared and argued the case, but relator introduced.no evidence in support of the allegations contained in the application. In the absence of any proof supporting the allegations, relator should be remanded. The application is merely a pleading, and does not prove itself. Ex parte Welburn, 157 S. W. 154, and eases there cited.

The district attorney did offer some evidence, and this evidence would show that when the relator was summoned before the grand jury she refused to be sworn or affirm. When she was carried before the district judge she again refused to be sworn to answer any question, or to affirm in any way, and yet there is no proof offered that such action was on account of any religious or other convictions. This would be such contempt as would authorize her confinement in jail until she should purge herself of contempt and take the oath required by law to be administered to all- witnesses.

It would seem from the proof offered by the district attorney that relator presumed that she was going to be questioned by the grand jury about alleged incestuous relations between her and her father. This furnishes no excuse for refusing to be sworn to answer sueb questions as might be propounded to her by the grand jury. After being sworn, if such questions were propounded, then, and not until then, would she be justified in refusing to answer such questions.

However, it further appears from the testimony offered by the district attorney that when the witness refused even to be sworn, that he then and there offered and tendered her complete and absolute immunity from prosecution as to any matter about which she might be called upon to testify, which tender met with the sanction and approval of the district judge. Under such circumstances, she could be compelled to testify as to her incestuous relations between herself and her father, if any. Ex parte Muncy, 163 S. W. 29, and Ex parte Higgins, 160 S. W. 696. As said in the Higgins Case, it is the better practice that the sanction and approval of the judge of the district court be made a matter of record in his court, and, while the judgment entered in this case impliedly so states, yet it does not expressly do so, and in all such orders it would be proper, and the court should recite that immunity from prosecution had been offered the witness, which offer the court approved, and he then and there informed the witness she could not and would not be prosecuted for any matter about which she might be called on to testify.

The relator is remanded.

DAVIDSON, J., absent at consultation.  