Ex Parte Greenhaw

53 S.W. 1024, 41 Tex. Crim. 278, 1899 Tex. Crim. App. LEXIS 190

Opinions

EBOOKS, Judge.

Appellant was indicted for three several murders in Henderson County. He sued out an application for habeas corpus before the Hon. A. D. Lipscomb, judge of the District Court of said county, and upon the hearing thereof was remanded to the custody of the sheriff.

Appellant’s first assignment of error is “that the court erred in refusing a reasonable bail to applicant, the evidence showing he is only held as a witness against his codefendants, and that he had been promised, under a valid contract with the proper officers of the State, immunity from prosecution and punishment for his connection with the crimes charged against him.” The record shows that counsel for the State and the appellant made the following agreement: “It is agreed by and between the applicant and the State, that the statement of facts shows 'that applicant is guilty of murder in the first degree, and that the proof is evident; and that the applicant is only entitled to bail, if at all, in the event that the Court of Criminal Appeals should see proper to grant it, upon the contract (if any) as shown by said statement of facts, had with the State, granting the said applicant immunity from prosecution and punishment in consideration of his turning State’s evidence. This agreement does not waive the error assigned in the second assignment of error presented by the record. And the matters contained in the applicant’s assignments of error are the only ones that this court is to consider in reference to this appeal.” And, in addition to said agreement, it appears that the applicant made an agreement with Hon. 1ST. B. Morris, representing the State of Texas, which agreement was ratified and consented to by Jerry H. Crook, Esq., district attorney in and for the district of which said Henderson County is a part. It appears, in substance, that the defendant agreed to tell fully and truly all he knew about said killing, and to leave out no guilty person, and to implicate no innocent man; that thereupon the defendant made a statement inculpating all the parties under arrest, leaving out his brother. Subsequent to the making of said statement, he made an additional statement, in which he included his brother, Arthur Greenhaw, as one of the participants in the murder. 1ST. B. Morris states “that he promised the applicant that, if he would tell all he knew about said murders, and testify fully and truly thereto, he should have immunity from punishment for his complicity therein, and at the proper time he should be given his liberty, and that, when the proper time arrived, he would not resist his application for bail; that he did not think he told applicant that he should have bail when it was safe for him to return to his home, nor was any time agreed on. The applicant states that one of the conditions on which he turned State’s evidence was that he should be allowed bail, and he was led to believe that he would be granted hail as soon as the excitement incident to the hanging of the three Humphreys, for the .murder of which applicant was indicted, together with the other parties, subsided in the neighborhood in which applicant lived, and as soon as it was personally safe for applicant to be at large.” The applicant testified on the examining trial, and on the habeas corpus trial before the district judge, under the agreement made with the said Morris, and has ever been ready to so testify according to said agreement, and make a full, free, and correct statement of all the facts. Applicant’s wife testified that on Monday before the habeas corpus trial she had a conversation with Messrs. Morris and Faulk. Morris told her two or three times that John (the applicant) would soon be a free man; that he was going to allow him bond; that applicant had told Morris about the mob, and that he would soon have his liberty; that applicant would soon have bail. There are but' two.statutes in our Code of Criminal Procedure touching this matter. Article 37 provides: “The district or county-attorney shall not dismiss a case unless -he shall file a written statement with the papers in the case, setting out his reasons for such dismissal, which reasons shall be incorporated in the judgment of dismissal, and no case shall be dismissed without the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and sufficient to authorize such dismissal.” Article 630 provides: “The district or county attorney may, by permission of the court, dismiss a criminal action at any time upon complying with the requirements of article 37 of this Code.”

It appears from the foregoing statement that there is nothing left for us to decide in this case, except the isolated proposition as to whether or not a party who is guilty of murder in the first degree, and the proof evident, is entitled to bail, where there is an agreement to give him bail, before the parties that he agreed to testify against have been tried. We will say, in passing, that there does not appear to have been any definite time stated within which the bail was to be granted; but this record evidences some kind of an agreement by which the party should be entitled to bail at some time, and the applicant says he was to be entitled to bail as soon as the excitement in the neighborhood where the murders occurred should have subsided; and applicant also offered proof to show that the excitement had subsided, and it would be safe for him to return home. After the introduction of the evidence, the judge remanded the applicant with the following order: “It is therefore ordered and adjudged that the application of the said John Greenhaw be denied, and he is hereby remanded to the custody of the said K. Richardson. This order is made, however, without prejudice to the said John Greenhaw’s rights under an agreement with the counsel for the State, which, in so far as the matter of bail is concerned, are hereby ascertained to be that he shall be entitled to bail when he shall have made a reasonably continued compliance with his agreement aforesaid; and it is further hereby ascertained that the said John Greenhaw will be entitled to bail at the earliest time at which, in the absence of agreement, he would have been entitled to be bailed, or, in the alternative, to force a trial under article 604 of the Code of Criminal Procedure; provided he shall continue to comply with his said agreement.” It appears from the foregoing order of the court that it ratifies the agreement theretofore made with 1ST. B. Morris, representing the State; and the court, in said order remanding applicant, as shown by the above copy of same, states that it is further ascertained “that the said John Greenhaw will be entitled to bail at the earliest time at which, in the absence of agreement, he would have been entitled to be bailed, or in the alternative to force a trial under article 604, Code of Criminal Procedure, provided he shall continue to comply with his said agreement.” We think the legal effect of this order is relegating the applicant back to his rights under the statutes regardless of agreement, because, if he testifies truly, under said agreement, upon the final disposition of the cases, he is entitled to be released. The mere fact that the court approved the agreement does not change the legal aspect of the same. Prosecuting attorneys have no right, under the statutes of this State, in a capital offense to make an agreement thereby granting bail to defendant. Where two parties are indicted for murder, one of whom turns Statefs evidence, this forms and constitutes, under our law, a continuous contract, the good faith of which must be kept by both parties. Being a continuous contract, the terms and conditions are not consummated until the final trial of the party or parties accused against whom the accomplice agrees to testify. After he has testified against. the parties, and they have been convicted, and if appeals are prosecuted, and these appeals have been affirmed by this court, then the accomplice is entitled to his release under the terms of the contract; but not until then. We therefore hold that any agreement, even conceding there is an agreement in this case, is ultra vires, so far as the State is concerned, and one not authorized by law.

We have been cited to no authority which holds that, where a party turns State’s evidence, he is entitled to bail. But on this subject we find the following laid down in Bishop’s Hew Criminal Procedure, section 1168: “Before testifying, the accomplice has acquired no special privileges. He is not, consequently, entitled to have bail.” In Fleming v. State, 28 Texas Criminal Appeals, 236, after laying down the general proposition as contained in the above articles of the Code of Criminal Procedure, the court hold, in substance, that a county attorney can not make an agreement that is not authorized by statute, although that agreement may be within the apparent scope of his authority. The party with whom he makes the agreement is bound to take notice of the law, and, if an agreement is made with the prosecuting officer, the party with whom he agrees must take cognizance of the law under which he acts, and the extent and scope of his authority; otherwise he acts at his own hazard. There is no authority in Texas for a county or district attorney, or other party acting for them, to agree that an accomplice turning State’s evidence shall have bail, in a capital case. Again, in Nicks v. State, 40 Texas Criminal Reports, 1, this language is used: “It is the recognized practice in Texas that the district attorney or the prosecuting officer may permit one or more, parties accused of crime to turn State’s evidence, and use him or them as witnesses against his codefendants; and the statutes authorizes such officers to dismiss such prosecutions with the consent of the trial court. It is also a practice, recognized in our courts, for the district attorney, with the concurrence of the court, to enter dismissals in this character of case when it is deemed essential to the ends of justice that the parties whose cases are dismissed should turn State’s evidence against their confederates. * * * So, where the district attorney enters into such an agreement, and the party turning State’s evidence carries out in good faith his part of the contract, it would seem to terminate his prosecution. But, in order to entitle the defendant to such dismissal, he must in good faith carry out his agreement. In Neeley’s case, 27 Texas Criminal Appeals, 324, the contract was violated by the party who agreed to testify, and he was placed upon trial, and convicted, over his protest. The court, in that case, said: ‘Having violated his agreement to testify in behalf of the State, the defendant was not entitled to exemption from prosecution by virtue of said agreement. It is well settled that where a partieeps criminis, for the purpose of securing exemption from the prosecution, agrees to testify in behalf of the State against his accomplices in crime, and violates such agreement by refusing to testify, in good faith, fairly and fully to' facts within his knowledge, he can not claim the benefit of such agreement, and may be prosecuted and convicted, regardless thereof.’ ” Now, applying the foregoing principles of law to the facts of this case, it appears that applicant has made an agreement with the prosecuting attorney to testify against various defendants in a triple murder,, participated in by himself. Under such agreement he is to receive immunity from prosecution in the event he tells freely, fully, and fairly" all the facts incriminative of those defendants. As the record stands now before us, this applicant is guilty of murder in the first degree, with the proof evident, and to which he has no defense; and, before he can have a defense, he must testify against said parties as above indicated, until their eases are finally closed in the courts of the country.. The agreement he sets up here is only a conditional one, and. can not operate as a defense, and thereby authorize him to have bail. Until the agreement is consummated, he has no defense. Therefore,, conceding, as stated, that there was an agreement made for bail, still we say it is an agreement not authorized by law, and can not be enforced. It furthermore appearing that the trials of the parties have not taken place, and the applicant showing no cause, other than as above stated, why he should be released, the judgment of the lower court must be affirmed. The disposition of appellant’s first assignment of error also disposes of his second assignment. .The judgment is affirmed.

Affirmed.