Ex Parte Andrews

100 S.W. 376, 51 Tex. Crim. 79, 1907 Tex. Crim. App. LEXIS 73

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1907
• Docket: No. 3795.
• Status: Published

Opinions

HENDERSON, Judge.

This is an original application to this court for writ of habeas corpus by the relator Max Andrews, seeking to be discharged from an alleged illegal restraint by the sheriff of Harris County, under a contempt proceeding from the Criminal Court of said county. It appears from relator’s statements that during a term of the court held in Harris County in 1904, while the grand jury was in session, there was a strike of the employees of the Electric Street Car System of Houston as against their employers, one H. F. McGregor being the manager of said system; that on account of the strike the employees were discharged and certain other employees were brought to take their places; that during this time some one dynamited Barney’s place, which was a gambling resort, and at the time a number of persons were there engaged in gambling, and during the confusion some money was taken from the place. It is also made to appear that probably the labor unions of Houston took part in favor of the former employees, the strikers, and evidently a good deal of confusion and excitement existed in the City of Houston. It appears that a general boycott was enforced against said Street Car Company, and very few people patronized or rode upon the ears of said company, and it was recognized that the labor organizations of said city had actually boycotted said Street Car Company under and by virtue of certain resolutions passed by certain labor organizations, and it seems that there was an effort being made to indict the leaders in said boycott and especially the members of the committee representing said labor organizations in its differences with said .Street Car Company for violating what is known as the anti-trust laws of the State of Texas. At this time the Criminal District Judge, the Hon. J. K. P. Gillaspie, had the grand jury to come before him, of which H. F. Mc-Gregor was a member, and instructed said grand jury, among other things, as follows:

“Gentlemen :

“There have transpired several things in the last few days that it is made my duty to call your attention to, which have come to me officially, as well as in the public prints. One of them I expect you are as well informed about as I; that is, the matter of dynamiting here in town. One place over, a saloon; and because the place was an unlawful one does not make it lawful to dynamite it; the law makes it an attempt to destroy human life and property to act in any such way. Those things are to be dealt with according to law. I call your attention to it, and want you to investigate that matter, and if possible- to bring to justice the parties so offending.

“I will also call your attention to matters arising here, of acts which are prohibited by law, and which are covered by this statute. The statute reads thus:

“ TYhere any two or more persons, firms, corporations or association of persons shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation or association of persons for buying from or selling to any other person, firm, corporation or association of persons/

(Act of March 31, 1903, Legislature of Texas, section 3, paragraph 2, pages 119 to 123.)

“This is a violation of the Anti-Trust law of this State. It is your duty to investigate these matters; and if such is the case, that indictments be found against the persons so guilty or offending.

“What has caused these matters, I suppose you are familiar with as I am, but it is not for me to take any decided stand upon either side, but to call your attention to the law as I have read it, and, I ask you to look into these matters, and if you find the law has been violated, to find indictments against the persons guilty of it. You will now retire.”

Subsequent to this the relator Max Andrews was brought before said grand jury, and he was asked the following questions:

“1. Do you know from personal knowledge or otherwise the principals or any one connected with the dynamiting of Barney’s place?

“3. What labor unions have placed the Houston Electric Company and Highland Park on the unfair list and authorized the fine of any of its members for riding on the street cars or visiting Highland Park ?

“3. Has the Musicians’ Union authorized a fine of $15 on any of its members who ride on the street car and forbidden any of its members to play at Highland Park?

“4. Has the Bartenders’ Union forbidden any of its members to work at Highland Park?

“5. Has the Carpenters’ Union authorized a fine of $3.50 a day on any of its members who serve as special officers on the street cars?

“6. Give the names of any members of the committees of the Labor Council, other than yourself, who are cooperating and working to establish a boycott of the cars of the Houston Electric Company or to have same placed on the unfair list?

“7. Give the names of any persons who have approached you and suggested plans for boycotting the cars of the Houston Electric Company.

“8. Give the names of any persons who have refused to sell goods to people who have ridden on the cars of the Houston Electric Company.

“9. Have you any personal knowledge as to who the parties were that dynamited Barney’s place?

“10. Give the names of the parties who have knowledge of the perpetrators of the dynamiting of Barney’s place.

“11. Give the names of any persons that can connect the employees of the Street Bailway with having been guilty of dynamiting at Barney’s place.

“13. Give the names of any employees of the Street Bailway Company, or parties that can furnish the same, that were gambling at the time and witnessed the dynamiting of Barney’s place.

“13. What information have you that would connect employees of the Street Bailway Company with the dynamiting at Barney’s place as indicated in the daily edition of the Labor Journal ?”

The relator refused to answer the above questions, and was then brought before the criminal district judge, and the circumstances of his refusal, submitted by the grand jury to him, were made known to the court, whereupon the judge required him to answer said questions before said body, which he refused to do, claiming the answers thereto would tend to incriminate him; whereupon, the judge again required him to answer said questions, which he refused to do, and he was adjudged guilty of contempt of court, and his punishment assessed at a fine of $100, and that he be committed to the Harris County jail until he is willing to testify before said grand jury and give answers under oath to said questions so propounded by said grand jury, etc.

It is claimed by relator that no judgment was entered against him at the time and none until after his leaving the City of Houston by rail for the City of Bockdale in Milam County, for the purpose of obtaining the writ of habeas corpus, and he insists that he should be relieved and discharged under the rule laid down in Ex parte Kearby, 35 Texas Crim. Rep., 634. In that case we held that when one is adjudged guilty of a contempt of court, that the fact of contempt should be ascertained and determined by the court, and that this adjudication should be entered in the minutes of the court, and a writ of commitment thereon issued; that an imprisonment could not be imposed and executed upon merely a verbal order of the court, nor could the record be completed after the writ of habeas corpus had been sued for. This relates to actual contempts in the presence of the court such as we consider this case. The question, however, is one of proof. While we find a judgment and writ of commitment in the record, we do not find any proof outside of the recitations in the application that shows the order of commitment was not entered prior to the suing out of the writ of habeas corpus.

Belator further maintains that he should be discharged because he could not safely answer the questions propounded to him by the grand jury under the direction of the court without incriminating himself; that is, that the testimony which he would give might tend to incriminate him. In Ex parte Park, 37 Texas Crim. Rep., 590, this question was discussed and the authorities reviewed, and it was there held that a witness must claim his privilege at the threshold; he could not give a part of the testimony that might be in his favor or disclose some of the facts, and then refuse to give other facts known by him; that is, if he once waives his right. he cannot afterwards stand on his privilege. It was further held that while it was incumbent on the witness to assert his privilege and to be the judge thereof in the first instance, yet that the court itself was the final judge as to whether or not the testimony was privileged, and he should determine this from all the circumstances connected with the investigation within his knowledge, and from the environments of the case. Of course, this would apprehend that the judge must be informed as to what matter was being investigated and enough of the circumstances to enable him to determine the question of privilege. For the purpose of determining this question, it may be stated that the questions propounded to the witness divide themselves into two classes suggesting two different lines of investigation, though involving the same subject-matter. Questions 1, 9, 10, 11, 12 and 13, relate to interrogatories intended to ascertain who it was that dynamited Barney’s place. The other questions, from 2 to 8 inclusive, relate to assumed violations of the Anti-Trust law of 1903 (see laws of the 28th Legislature, pages 119 to 123); that is, they relate to certain questions calculated to disclose the witness’ knowledge of boycotting by certain labor unions of certain firms and corporations including the Houston Electric Company. Of course, it will be conceded that before any witness can be held in contempt of court that the court must have jurisdiction of the subject-matter of investigation, and when the contempt is with reference to the proceedings of a grand jury, it must be shown that the grand jury was then. engaged in an endeavor to disclose and to bring to punishment some criminal offense by indictment. See McDonough v. State, 11 Texas Ct. Rep., 972. Now, what criminal offense was the grand jury engaged in investigating when they interrogated the witness as to who it was that dynamited Barney’s place. If any one was killed there, the record furnishes no information thereof, nor are we even informed that any injury was done to property there. It seems to be assumed that the place was djmamited, and it is shown that a number of persons were there in the application for the writ; and in a certain editorial, which constitutes a part of the record, taken from the Houston Labor Journal, which appears to have been edited or controlled in some way by the relator. We. quote from that paper, as follows: “The Houston Street Car Company’s importation of two hundred and fifty thugs, thieves and outlaws from the slums of St. Louis to take the places of honest Houston workingmen has borne its legitimate result.

“The dynamiting of the gambling house last night and the robbery of the house of about $1,200 is a new kind of' outrage in this part of the country, and is traceable directly to the scab desperadoes of the street car company from the dives of St. Louis.

“The circumstances going to show this outrage was committed by some of the hired outlaws of the street car company are summed up as follows:

“First. The scab employees of the street ear company were paid off yesterday.

“Second. The gambling house was full of these scab employees of the street car company at the time of the explosion, and they had been playing at the games all evening.

“Third. After the dynamiting and robbery'the fugitives were seen running toward the San Jacinto bridge. This is the shortest dark route from the scene of the outrage toward the street ear company’s power house, where the regiment of outlaw scabs are entrenched.

“Four. The inference is that a corporation that was careful enough to see that its gang of 250 toughs was headed by a professional murderer, would also see to it that there were professional dynamiters in the crowd. The use of the professional dynamiter by such infamous corporations as the Houston Street Car Company is to lay the blame on the strikers and thereby undertake to win public sympathy.

“Five. The importation of two hundred and fifty lawless characters and the backing them up by the street car company in every act of lawlessness that they have committed since they have been in this city, is calculated to make bolder and more audacious such an element of- professional toughs.

“Now, every right thinking man in Houston must conclude that if there is need for a ‘law and order’ organization, it must be one that is not under the domination of the Houston Street Oar Company, as is the Citizens’ Alliance.

“Is it not about time for an official investigation of this scum of the earth quartered at the street car power house? If detectives of national acquaintance could be secured to inspect the ruffian army imported into Houston, they might perhaps find in them a choice lot of faces known among the police rogue’s galleries over the country, and ‘wanted’ elsewhere. It would be well to stop any reign of terror in this city by such a menacing gang of thugs right at the outset.”

Taking this editorial and the judge’s charge, in connection with the application of the relator for a writ of habeas corpus, it is possible that the grand jury may have been investigating an assault to murder some one, or the theft of $1,200 or a part thereof, or some injury to the property at Barney’s place, or it is possible, that the grand jury may have been investigating the publication of the article in question, in order to determine whether or not the writer or publisher of said article was not guilty of libel, in attributing the dynamiting of Barney’s place, and the results ensuing therefrom, to the Houston Electric Company, or its officers. All we can say as to this matter is that we are left to speculate as to what offense the grand jury was engaged in investigating, and we are equally left in the dark from this record as to the particular environments or circumstances surrounding the -special matter of investigation, which would enable us to clearly determine whether or not relator' was in contempt in refusing to answer the questions. If relator himself dynamited Barney’s place, or if he was engaged with those who did dynamite it, we can readily see how his answers .to the questions might tend to incriminate him. If he was not engaged by himself, or with others in dynamiting Barney’s place, his attributing it to- the street car company or to its management, might subject him to a prosecution as for libel. While in the article in question he does not state directly that the street car company was guilty of dynamiting Barney’s place, the effect of the article is to “fasten it on said street ear company, and if that is false he might subject himself to an indictment for libeling said company. So that, in the uncertain state of this record it appears to us that the answers of the witness might tend to incriminate him, and inasmuch as he is the judge thereof in the first instance, and we are not advised of the circumstances and environments which would suggest or tend to suggest that his answers could not incriminate him, we must hold that he was not in contempt of court in declining to answer the questions propounded to him in regard to said matter. As stated before, the other questions involved violations of the Anti-trust law of 1903. We note that that law provides that when a party is made a witness in that character of case before a justice of the peace, he can be compelled to testify and is relieved from any prosecution, but the fact that this statute is special in its terms and relieves the witness when the proceedings are before a justice of the peace, in our opinion would confine it to that tribunal, and not extend it to a district court, or a grand jury, which is a part of the district court; and moreover, we do not find from this record that he was offered any immunity. So that, if he knew of these matters inquired about as to boycotting the Houston Electric Car Company, and as to boycotting certain merchants by certain labor unions, it would occur that he must know of such matters by virtue of his participating in such boycotts, and inasmuch as he was offered no immunity, and inasmuch as this investigation was not before a justice of the peace, we hold that he was not compelled to answer the questions. It is, therefore, considered that the relator be discharged.

Discharged.