
    (85 Tex. Cr. R. 380)
    Ex parte SANCHEZ et al.
    (No. 5458.)
    (Court of Criminal Appeals of Texas.
    June 4, 1919.)
    Witnesses <§=>300 — Privilege oe Accused.
    One arrested without warrant cannot be compelled to testify before the grand jury as to matters involving those for which he was arrested as against a claim of privilege.
    Application by Roberto Sanchez and another for a writ of habeas corpus.
    Application granted.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Relators have made application for a writ of habeas corpus to this court, charging in stibstance that they were adjudged guilty of contempt of court for refusal to answer questions propounded to them by the grand jury of Dallas county. In their sworn petition they make the following statement:

“Your petitioners show that they were arrested without warrant on the 15th day of May, 1919, and placed in jail at Dallas county; that thereafter, on the morning of the 16th day of May, 1919, while under arrest, they were carried before the grand jury of Dallas county and sworn as witnesses; that, when they were called upon to testify before the grand jury, they each pleaded their privileges as a witness and respectfully told the grand jury that they understood that they were defendants in the matter inquired about, and that they declined to make a statement, as any statement they might make might incriminate themselves respectively.”

If this statement is true in substance, the petitioners should not have heen compelled to give their testimony before the grand jury. Ex parte Wilson, 39 Tex. Cr. R. 630, 47 S. W. 996; Ex parte Merrell, 50 Tex. Cr. R. 193, 95 S. W. 1047; Ex parte Hughes, 57 Tex. Cr. R. 82, 121 S. W. 1118; Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835; Wilson v. State, 41 Tex. Cr. R. 119, 51 S. W. 916. If the truth of it should be controverted, this court, being one organized and maintained in the main for the exercise of appellate jurisdiction, is not in a position to determine controverted questions of fact.

It is ordered that the application be granted; that the relators be each discharged from the order holding them for contempt upon the execution of a bond in the sum of $100 conditioned according to law and securing their attendance upon criminal district court No. 2 of Dallas county, Tex., to abide its order, and that said writ be returned to and heard by said court.  