Opinion
No. 9580.
Delivered March 3, 1926. Rehearing denied State April 7, 1926.
1. — Transporting Intoxicating Liquor — Evidence — Statement of Appellant — Before Grand Jury — Erroneously Excluded.
Where, on a trial for transporting intoxicating liquor, the State introduced a written statement of appellant made before the grand jury, to the effect that the whiskey which appellant was charged with transporting, was purchased by him from one Charles Jirasek, it was error to refuse to permit appellant to testify as to all of his statement so made, it being admissible under Art. 718 of Vernon's Tex.Crim. Stats., Vol. 2, as well as under Art. 694, P. C. of 1925.
ON REHEARING.2. — Same — Testimony Before Grand Jury — Immunity.
On rehearing the State insists that we were in error in our original opinion, in holding that appellant should have been permitted to testify to all of the statements made by him before the grand jury. With this contention we cannot agree. Appellant was carried before the grand jury three times. He did not go voluntarily. If he told the grand jury from whom he purchased the whiskey, under Art. 694 P. C. 1925, he was immune from prosecution for transporting it, and he should have been permitted to give the testimony upon which he based such defense.
Appeal from the District Court of Williamson County. Tried below before the Hon. Cooper Sansom, Judge.
Appeal from a conviction for transporting intoxicating liquor, penalty one year in the penitentiary.
The opinion states the case.
H. Z. Darrill and Wilcox Groves, of Georgetown, for appellant. Sam D. Stinson, State's Attorney, and Nat Gentry, Jr., Assistant State's Attorney, for the State.
The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
Appellant purchased from one Charles Jirasek a half gallon of whiskey and carried it in his automobile to his home in Taylor. While on the way his car became fastened in a mud hole and two persons assisted him in extricating it. He gave them each a drink of whisky and drank some of it himself. He claimed in his testimony that his wife was in ill health, affected with heart disease; that because of this ailment it was necessary that she use whiskey; that he had been obtaining it upon prescription, but found that he could obtain it from Jirasek much cheaper and for that reason he made the purchase.
On the trial of the case, the state used in evidence against the appellant a written statement which he had made and signed before the grand jury. It was related in the statement that appellant had purchased a jar of whiskey from Jirasek for which he paid him seven dollars; that the transaction was had in Williamson County; that it was good moonshine whiskey; that he drank part of it. He testified that the written statement made while he was before the grand jury was not written by him and did not contain all that he said. He offered to prove that in his examination before the grand jury he testified to many things in addition to those that were embraced in the written statement; that he testified that he purchased the whiskey for use as medicine for his wife and for himself; and that it was used for medicinal purposes. On the hearing of his motion for new trial he offered to prove that he was before the grand jury twice; that at first he declined to reveal the name of the person from whom he purchased the whisky, but afterwards related the entire transaction, namely, the name of the purchaser, the place of the purchase, his own actions with reference to taking it to his home, and the purpose for which he took it. The court refused to receive this testimony.
In qualifying the bills, we understand the judge to justify his refusal to permit the appellant to testify to all that was said upon the subject while he was before the grand jury at the time the written statement was made upon the ground that at the time the testimony was proffered, the appellant had closed his testimony and had been called to the witness stand with the permission of the court, but for the purpose alone of giving testimony to the effect that he had purchased the whiskey for medicinal use. In Art. 718, Vernon's Tex.Crim. Stat., Vol. 2, it is said:
"The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice."
In the present case, it occurs to us that the due administration of justice required that the appellant be permitted to disclose his entire testimony concerning the matter before the grand jury. All that he said on the subject at the time was obviously admissible under Art. 811, C. C. P., wherein it is said that "when a detailed act, declaration, conversation or writing is given in evidence by one party, the whole on the subject may be inquired into by the other; and any act, declaration, or conversation necessary to make fully understood or to explain what is given in evidence by the adversary is admissible." In the application of Art. 718, which is quoted above, the court has broad discretion which will not ordinarily be reviewed, but the testimony which the appellant sought to elicit was of such importance as to demand its receipt. Moreover, he offered the same testimony on his hearing of the motion for new trial wherein he set up the fact that by reason of his testimony before the grand jury, he was immune from the present prosecution, thereby invoking Art 694, P. C., 1925, wherein it is said:
"No person shall be excused from testifying against persons who have violated any provision of this chapter 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."
The proffered testimony in the present case would have had direct bearing upon the application of the article of the statute last above quoted. Under all the facts, we think the testimony touching all that appellant said upon the subject while before the grand jury should have been received. The truth of it, of course, was a matter which was within the province of the state to offer controverted testimony. It is obvious that upon the subject the state was not unprepared. The prosecuting attorney, who was before the grand jury and heard the appellant's testimony given therein, as well as the grand jurors themselves, were available to the State to controvert the appellant's claim, if, in fact, it was not true.
There are many bills of exception including complaints of misconduct of the jury which we have not deemed it expedient or necessary to discuss, as it is no probable that they will arise upon another trial.
For the reasons stated, the judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.
The state has filed a motion for rehearing insisting that we were in error in saying the state had used in evidence against appellant a written statement made by him before the grand jury and therefore the conclusion based upon this assumption is also erroneous. We have again carefully examined the record to ascertain if our statement was based on a misunderstanding of the facts. The indictment against appellant was returned by the grand jury for the May term of court in 1924. He was before that grand jury twice. The first time he did not tell about buying the whiskey from one Jirasek, but frankly says he tried to protect his friend, but that the next day he corrected it and told the grand jury "exactly how it was." For some reason this grand jury did not indict Jirasek. The grand jury for the succeeding January term of court also called appellant before it and interrogated him about buying the whiskey from Jirasek. The statement then made is the one used by the State against appellant on his trial. His defense was that he bought and transported the whiskey for medicinal purposes. On cross-examination the statement was read over to him in the presence of the jury to show it contained no claim that he procured or transported the whiskey for medical use. This was using the statement against him as effectually as though it had been formally introduced by the state. Appellant's complaint is that neither on the trial nor upon the motion for new trial was he permitted to testify that on each occasion before both grand juries he told them much more than is embraced in the last statement, and if permitted to do so it would have shown him entitled to immunity under Article 694 P. C., 1925, which is quoted in our original opinion.
There is nothing in the record to show that appellant was a voluntary witness before the grand jury seeking to forestall the state by making out for himself a case of immunity. On the contrary, it shows he was brought before it by process. If he told the grand jury about the purchase and transportation of the whiskey he could not be prosecuted for the transportation of it under the express provision of the statute referred to. He should have been permitted to give the testimony upon which he proposed to base such defense.
The motion for rehearing is overruled.
Overruled.