Ex Parte Napoleon

*308 HARPER, Judge. In this case the relator was fined for contempt by the Criminal District Court of Dallas County, and his punishment assessed at a fine of one hundred dollars, and in addition thereto he was ordered confined in the jail of Dallas County until he should answer certain questions propounded to him by the grand jury of that county. A writ of habeas corpus was granted by this court. It appears from the record that the grand jury made the following report to Judge Miller: “We have asked Jesse Napoleon, a witness before us, after he was duly sworn, the following questions: ‘Where did you get the policy tickets found in your possession January 4, 1912? From whom did you get them? Who pays you for selling them?’ All of which questions he refuses to answer except to say he don’t know. Joe Wilson, Foreman of the Grand Jury.” Judge Miller then asked the witness some questions, among which were: “You say you do not know where you got those tickets that you had in your possession ?” to which the witness answered he did not know. Other questions were propounded, but which we do not deem necessary to repeat here, for if the questions were proper questions, and the witness could be required to answer them, the relator would be guilty of contempt when he admitted to the judge that he had refused to answer the questions propounded by the grand jury. Our Penal Code provides in article 374, that “if any person shall sell, offer for sale or keep for sale any ticket or part of ticket in any lottery, he shall be fined not less than $10 nor more than $50.” It is thus seen that if the relator -had the tickets for sale, he would be guilty of an offense under our laws, and the question, “Who pays you for selling them?” if answered by the witness, that any person paid him for selling the tickets, would render him liable to a criminal prosecution. And it further appears by the record that when the judge required the witness to answer questions propounded by him, that the witness did have the tickets for sale, and was being paid for selling them. Hnder these circumstances could the witness be required to answer the question, or would he be guilty of contempt of court in refusing to do so? This question is fully discussed in the cases of Ex parte Park, 37 Texas Crim. Rep., 590, and Ex parte Wilson, 39 Texas Crim. Rep., 630, and we do not deem it necessary to enter into a lengthy discussion of it here. It does not appear when the witness was before the grand jury, or before the judge, that he claimed his privilege under section 10 of the Bill of Rights, but in the application before this court he states, that if required to answer the question it would render him liable to a criminal prosecution, and the record as agreed on between State’s counsel and relator, filed in this court, conclusively shows such to be the fact—that he had the tickets for sale for a Mr. George, and was to receive twenty percent of the proceeds for selling them. The question propounded, “Who pays you for selling them?” *309 necessarily implied a criminal connection with the transaction for which relator could he prosecuted. As is said in the Ex parte Parks case, by a guarantee of immunity on the part of the court to the witness against any prosecution for any offense about which he was called on to testify, the witness could be compelled to give evidence, but in this case it does not appear that this guarantee was given to the witness. Before a witness can be compelled to give evidence about any matter which would incriminate him, he must be assured by the proper officials, in a legal manner, that he will not be prosecuted for such an offense—be guaranteed immunity from prosecution in such a manner that such guarantee would be a complete defense if he should be prosecuted. The officers of the State assisting the grand jury knew that an answer to the question would probably incriminate the witness, and before seeking to compel him to answer it, immunity from punishment should have been extended to him, and in the absence of such immunity being given, it would be violative of the provisions of our Constitution to punish him for refusing to answer the question. (Ex parte Wilson, 39 Texas Crim. Rep., 630.) As hereinbefore stated, the question arising in this case has been so fully discussed in the case of Ex parte Parks, supra, and Ex parte Wilson, supra, that it is unnecessary to discuss the issue in this case, and it was held that before a witness can be required to answer any question that would incriminate him, he must be guaranteed immunity from punishment. The officers not offering relator immunity from punishment, and the question asked being such that an answer thereto would necessarily incriminate him and render him liable to criminal prosecution, he was not’ compelled to answer the question until immunity from punishment was guaranteed to him. If the record disclosed that he was guaranteed immunity from punishment for the offense about which he was being questioned, we would hold that he would be compelled to answer the questions. The record not disclosing relator objected to answering the questions on the ground that it would incriminate him either in the District Court or when he was before the grand jury, but in the application before this court such ground being alleged and claimed, the relator will be discharged upon the payment of all costs incurred in this prosecution. Belator is ordered discharged upon the conditions named herein. Relator discharged.