HARPER, Judge.
Relator was called as a witness before the grand jury of Floyd County, Texas, when said body was examining witnesses in regard to the killing of J. M. Muncy. The relator is a boy twelve years of age, and is the son of J. M. Muncy, deceased, and Mrs. Bertie Muncy, and on his testimony and the testimony of other witnesses Mrs. Bertie Muncy and Horace Peters were indicted charged with the murder of J. M. Muncy.
Mrs. Muncy and Horace Peters sued out a writ of habeas corpus, and on this hearing relator was offered as a witness by the State, and refused to testify on the ground that any testimony he might give might incriminate him. The district attorney in open court stated that he would- agree that relator should not be prosecuted for any offense growing out of the killing of J. M. Muncy, and L. S. Kinder, judge of the Sixty-fourth Judicial District Court, acquiesced and approved said offer of immunity from prosecution, and informed relator that he would not be prosecuted for any offense growing out of the killing of his father, but the witness still refused to testify, when the court entered an order adjudging relator guilty of contempt, the order being as follows :
“And the said witness refused to answer any and all questions, and gave, while on the stand, and in open court, his reason for his refusal to answer said question that it would incriminate him, and the State, by its counsel in open court promised the said witness immunity from prosecution and punishment for said offense, and said promise was acquiesced in by the court, and the said witness was assured of immunity from prosecution for said offense, and it appearing to the court that there is no indictment or complaint or prosecution of any kind pending against said witness, and the court thereupon being of the opinion that the questions propounded would not incriminate the witness, and the said witness having been promised immunity from prosecution, and he having
agreed with the district attorney to testify herein, upon said promise of immunity, it is therefore ordered and adjudged by the court that said witness is in contempt of court for his refusal to answer said questions, and it is further the order, judgment and decree of the court that he, the said Elbert Muncy, be confined in jail of Floyd County, Texas, until he shall answer said questions, and it is therefore ordered by the court that the said witness, Elbert Muncy, be and he is hereby remanded to the custody of the sheriff of said Floyd County, Texas, until he shall answer said questions and testify as a witness in said causes.”
It is thus seen that when relator was called before the grand jury he was offered immunity and accepted same, and did testify before the grand jury, a sworn statement of such testimony being incorporated in the record, and is as follows:
“About a week ago, I heard Horace Peters tell mama she ought to kill my papa. Yesterday evening mama said would I kill papa. I told’ her I would kill him if I could, but I was too nervous. While papa was gone to town, mama said she might kill papa if she could. Yesterday evening I told mama I would say I shot papa. I got up this morning and went out to the closet and told them the horse was out in the yard. Papa said ‘let him go.’ As I came in, mama stepped out on the floor. I lay down on the bed. I then heard the pistol shot or fire. I then heard it fall on the floor. I went out and told Judge Stalbird I did it, and when I told you all I killed him I did it to save my mama.”
After being remanded to jail for refusing to testify on the habeas corpus trial, relator sued out a writ of habeas corpus, which was granted by Judge Davidson, and the cause set for hearing on the 8th day of October, it being the first day set for hearing of causes at this term of court. At the hearing of the case the testimony offered was substantially as above, the relator claiming that he could not be forced to testify as section 10 of the Bill of Rights provides that no person shall be compelled to testify against himself. There is and can be no question that no person can be compelled to testify in a . criminal case pending against him, nor give testimony on the trial of another on which a prosecution may or can be founded against him. To this expression of the law we give our full assent and approve what is said in the case of Ex parte Wilson, 47 S. W. Rep., 996, cited by relator, but in that case no immunity was tendered, offered nor accepted. A different question arises here, and that is, after giving the witness immunity from prosecution, was the court attempting to force the witness to testify in regard to any matter upon which a prosecution might or could be founded against the witness ? That there was no case pending against him is an admitted fact; that he had testified in regard to the same matter before the grand jury under promise of immunity is an admitted fact, but for some reason on the habeas corpus trial he declines to testify, giving as his reason that his answers might incriminate him. The district judge
and district attorney again pledged him immunity from prosecution, but he declines to testify.
Relator’s able attorney argues and earnestly insists that although relator had testified before the grand jury under an agreement that he would not be prosecuted, that relator had the right to withdraw from such an agreement, and the State could not enforce it, but all the State could do would be to prosecute relator if it desired to do so. There is no doubt the State could proceed in that manner, if it desired to do so, but if the State elected not to do so, and again assured relator he would not be prosecuted for any offense growing out of this matter, why could he not be compelled to testify? In an unbroken line of decisions in this court, and the courts of other States, it is held that if a person has been tried and acquitted, he can then be compelled to testify against another, although his testimony might show a criminal connection with the offense; that if the statute of limitation furnishes a complete bar to him being prosecuted for the offense, he can be compelled to testify,' on the ground that in either of these events, he would not be giving evidence against himself, for no criminal prosecution against him would lie. In an unbroken line, of decisions this court has held, where the statutes of the State furnish complete immunity from prosecution for an offense, about which the witness is called to testify, he may be compelled to testify. The first case we find on this question, wherein our court passed on that question, is that of Floyd v. State, 7 Texas, 215, rendered in 1855. Judge Wheeler in rendering the opinion held that where a statute prescribes that a witness shall be exempt from liability for any offense of which he is compelled to give evidence, he can not claim the privilege of not answering, but he may be compelled to testify. This has been the unbroken rule of decision by our Supreme Court and this court from that day to this, and the law as thus announced is .supported by the decisions of the United States Supreme Court and the great weight of authority both in this country and in England.
And while relator does not seriously contest this rule of law, yet he says the Legislature of this State by no statutory enactment has declared such to be the rule in cases of murder, and similar cases. Upon what ground is it the courts hold that the witness is compelled to testify? It is that either by an acquittal, by limitation, or by statutory enactment, no prosecution would lie against the witness about which he may be called to testify, and we might here say that we agree to the rule, that the exemption from prosecution must be so broad as to absolutely prohibit his prosecution and conviction for any offense about which he may be called to testify, otherwise he will be within the protection of the Constitution, and he can not be compelled to testify. But if the immunity given him by the law of the State is such as to absolutely protect him from all punishment for the offense about which he is called to testify, then under such circumstances he could not be said to be giving evidence against himself, and the constitutional inhibition has no appli
cation any more than if he has been tried and acquitted, or the offense was barred by the statute of limitation, for in any and all of said events he is protected against
the evidence he may give being used against
him, and this is what the Constitution guarantees him—nothing more and nothing less.
The question then would be, do the laws of this State furnish relator full and ample immunity from punishment, if he should be compelled to testify? If so, he should be remanded to undergo the punishment assessed by the trial judge for contempt; if the law does not guarantee him absolute immunity from punishment in regard to the matters about which he would be compelled to testify, he is entitled to be discharged. The record, as hereinbefore recited, discloses that under an agreement of immunity from prosecution he did testify before the grand jury; that when called to testify on the habeas corpus trial of his mother and Peters he refused to testify, when he was again guaranteed immunity from prosecution by the district attorney, in open court, with the knowledge, sanction and approval of the district judge, and he was so informed. So the sole question is, did the district judge and district attorney have the authority and power under our law to guarantee and give this immunity from prosecution, and would our law and the courts enforce that immunity and protect relator from prosecution and punishment for any matter about which he might be called to testify in regard to the killing of his father? The right under our law of the district attorney, with the knowledge and consent of the district judge, to guarantee immunity from prosecution and punishment, has never been seriously questioned in this State. In the case of Barrara v. State, 43 Texas, 260, and other cases when our Supreme Court had criminal jurisdiction, it was recognized that they had this authority and power under our laws. When this court was created in 1876, in the first volume of its reports, in the case of Bowden v. State, 1 Texas Crim. App., 137, it recognized and enforced the rule. In that case the district attorney, with the approval of the district judge, agreed with Bowden that he would dismiss the case against him if he would testify against Arnold, who was also indicted for the offense. The case was dismissed, but subsequently Bowden was reindicted, tried and convicted, although he had regularly attended court, and stood ready to testify at any and all times should Arnold be tried. In passing on that case, this court said: “There has been no default on his (Bowden’s) part, and until there is, the plighted faith of the State should have been kept inviolate in his immunity from further prosecution and punishment,” and the conviction was reversed on this sole ground. And this rule of law has been reaffirmed by this court in the cases of Holmes v. State, 30 Texas Crim. App., 509; Ex parte Greenhau, 53 S. W. Rep., 1024; Hardin v. State, 12 Texas Crim. App., 186; Cameron v. State, 32 Texas Crim. Rep., 180. In the Greenhau and Cameron cases, supra, this question is discussed at length, and it is held that the courts of this State, under our Code, have authority to give and guarantee absolute immunity to a
person who may be called to testify in regard to the transaction. If the rule of law was otherwise, and there was any question that the immunity given and tendered by the court was not an absolute immunity from punishment for the matters about which he is called to testify, then we think relator’s contention would be sound. In the case of Young v. State, 45 Texas Crim. Rep., 202, it was held that a dismissal of a case in one court in consideration of the appellant’s testifying was binding upon all the courts of the State, and the defendant could not be prosecuted for any matter growing out of the transaction in another, and upon appeal the case was reversed and dismissed. In that case the trial judge testified that there were two cases pending in Grimes County against the appellant, and upon the district attorney making a motion to dismiss to obtain the testimony of Young against Dunlap, he permitted the cases, one charging burglary and the one charging theft, against Young, to be dismissed but says he at the time remanded Young to the custody of the sheriff of Brazos County, where an indictment for theft growing out of the same transaction was pending, the stolen property having been carried into that county. This court held that the dismissal of the cases for burglary and theft in consideration of Young testifying carried with it complete immunity for any matter growing out of the transaction, and he could not thereafter be prosecuted for the theft in Brazos County, as hereinbefore stated reversing and dismissing the case against Young. Thus it is seen that our courts have construed the law to carry complete immunity from prosecution for any matter growing out. of the transaction, and will not countenance nor permit the prosecution of a person under such circumstances. See also Stanford v. State, 42 Texas Crim. Rep., 343; Griffin v. State, 43 Texas Crim. Rep., 428; Taylor v. State, 50 Texas Crim. Rep., 380; Kain v. State, 16 Texas Crim. App.,
282;
Elliott v. State, 19 S. W. Rep., 249, and other cases.
Shortly after the writer’s accession to this court the case of Hughes v. State, 62 Texas Crim. Rep., 288, was decided, and we therein held, in accordance with the authorities above cited as we understood them, that if complete immunity from prosecution for the transaction was tendered the witness, he could be compelled to testify. There was no dissent filed in that case, but in the later case of Ex parte Napoleon, 65 Texas Crim. Rep., 307, 144 S. W. Rep., 269, where we announced the same rule, Judge Davidson filed a vigorous dissent. At the time the opinion was handed down Judge Davidson stated that he would file a dissenting opinion, but the dissent was not prepared at the time, and the writer did not see it until it was published in the Southwestern Reporter. In this dissenting opinion Judge Davidson does not deny that the courts of this State, under our laws, have the authority to give and guarantee immunity from prosecution, but his dissent is based upon the proposition that he can
not be compelled to testify against others in matters in which he is criminally liable
without his consent, citing-section 10 of the Bill of Rights, and cases cited, which we do not think
sustain his proposition, and later we will take up each of these cases and discuss them. He says:
“An inspection of the cases cited in the Park case shows that in each case there was an agreement with the witness to testify upon guaranteed immunity from prosecution. No case has been cited, and I believe none can be found in Texas, holding that a witness can be forced to testify against his confederates in a criminal prosecution, unless he has agreed so to do. He can not even then be forced to testify. If he agrees to do so upon promise of immunity and fails or refuses to carry out his agreement, he may be prosecuted in the case in which he made the agreement. Neely v. State, 27 Texas Crim. App., 324, 11 S. W. Rep., 376; Nicks v. State, 40 Texas Crim. Rep., 1, 48 S. W. Rep., 186; Ex parte Park, 37 Texas Crim. Rep., 590, 40 S. W. Rep., 300, 6.6 Am. St. Rep., 835; Stevens v. State, 42 Texas Crim. Rep., 154, 59 S. W. Rep., 545. The State may hold the indictment against him until he has complied with the agreement. Ex parte Greenhaw, 41 Texas Crim. Rep., 278, 53 S. W. Rep., 1024, and other cases cited, supra. In the Cameron case, 32 Texas Crim. Rep., 180, 22 S. W. Rep., 682, 40 Am. St. Rep., 763, an agreement made with the prosecution was required to be fulfilled. It was further held that, where the State has made such agreement, and the witness has complied with its terms, he is entitled to immunity. But in no case has it been held that the witness can be compelled to testify to any fact which would incriminate him. He may agree to do so, and if he fails or refuses h.e may be prosecuted as if he had not entered into such agreement.
“With the constitutional inhibition and guaranty that he shall not be compelled to give evidence against himself, it is not readily to be comprehended how it is to be held that the State can force the witness, to testify against himself, even by agreeing not to prosecute. The witness may testify if he chooses; but it is a matter within his discretion to be controlled by him, and not by the prosecuting officers.”
Thus it is seen he admits the witness can contract for immunity from prosecution, and then the immunity given is binding on the State and all its officers, and Judge Davidson, in an opinion by him, specifically so held in the case of Young v. State, 42 Texas Crim. Rep., 301, to which opinion we refer to show what authority the District Court has in the premises, and how complete immunity it can and does give even by agreeing to a dismissal of a case, when the case is dismissed in consideration of the witness testifying. So the question resolves itself down to the proposition, can the witness
be compelled to
testify, when immunity from prosecution is given him, if he does not desire to do so ? There is and can be no question that if the witness has been tried and acquitted he can be
compelled
to testify; if limitation bars a prosecution against him he can be compelled to testify. All the decisions so hold, and what reason can be given, if he can be compelled to testify in those instances, that if immunity from prosecution is absolutely given him, under the laws of a State he can not then be compelled to testify. No
legal prosecution can be instituted against him in regard to the matters about which he may be called to testify in that instance, any more than in the other two instances, and as hereinbefore stated, in the ease of Floyd v. State, 7 Texas, 215, our Supreme Court, in an opinion by Judge Wheeler, held that “if a prosecution is barred by the statute of limitations, he was
"bound
to answer the question, for then he would not be liable to punishment. The same
principle
applies if the witness is exempted by statute from punishment in consequence of his being made a witness. And though the answer of a witness, called to testify respecting the offense to which the exemption relates,
would tend to inculpate Mm as a participant in the crime, he could not refuse to answer,
for his participation in the offense could not subject him to punishment.” In that case the question before the court was,
could the witness be compelled to testify
when he did not desire to accept the immunity, and Judge Wheeler held he could. In fact, in that case the witness was fined for contempt for refusing to answer the questions as in this case, and the court held he was entitled to no relief, he being guaranteed immunity from prosecution, and should have answered the question. As hereinbefore stated, this opinion was handed down by our Supreme Court in 1855 when it had jurisdiction in criminal matters, and we know of no opinion even questioning the soundness' of the law there announced, until the dissenting opinion in the Napoleon case, supra, was filed. Certainly the case of Ex parte Park, 37 Texas Crim. Rep., 540, cited by Judge Davidson as sustaining his dissent, does not question the soundness of the rule of law announced in Floyd case, supra, but on the other hand in the Park case, that case is cited approvingly, and the relator was discharged solely upon the ground that immunity was not given appellant from prosecution for such offenses as his testimony might and probably would necessarily be disclosed on his examination, and in the case it is held: “Article 709 further provides: “The attorney representing the State may at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party.’ This would seem to imply the power on the part of the State to dismiss a case against defendant, and
require his testimony.
Of course, such dismissal must be with the guaranty to the witness on the part of the court against any other or further prosecution for the same offense; and this statute has been so construed. See Camron v. State, 32 Texas Crim. Rep., 180; Neeley v. State, 27 Texas Crim. App., 324; Fleming v. State, 28 Texas Crim. App., 234.”
If the immunity offered would not absolutely protect the witness against prosecution for matters about which he was called to testify, then we would not question his right to refuse to answer the questions, but if complete and absolute immunity is offered, the Park case in the excerpt above quoted holds with the Floyd case, that he may be compelled to testify, and the Floyd case is cited as authority in the Park
case that the immunity must absolutely protect
the witness
from prosecution. In the Wilson case cited by Judge Davidson no immunity from prosecution was offered or tendered the witness, and the question of whether the witness can be compelled to testify when given absolute immunity is not even discussed nor questioned, but the relator was discharged because the testimony could be used, in a
criminal prosecution against him.
In the other eases cited by Judge Davidson in his dissent the question of whether a witness can be
compelled
to answer when given immunity from prosecution is not mentioned nor discussed, and have no bearing on that question. In the case of Griffin v. State, 43 Texas Crim. Rep., 428, article 391 of the Penal Code is quoted, this court saying: “This article provides 'Any court, officer or tribunal having jurisdiction of the offenses enumerated in this chapter or any district or county attorney may subpoena persons and compel their attendance as witnesses to testify as to violations of any of the provisions of the foregoing articles. Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify and for any offense enumerated in this chapter a conviction may be had upon the unsupported evidence of an accomplice or participant.' Kain v. State, 16 Texas Crim. App., 282; Day v. State,. 27 Texas Crim. App., 143; Wright v. State, 23 Texas Crim. App., 313. And it would make no difference whether the grand jury had returned a bill or was simply examining into the transaction. If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the State, it exonerates the witness whose testimony is used by virtue of the terms of the statute. Nor does it make any difference at what stage of the investigation or trial the evidence of the participant is used. The grand jury may not have been satisfied that the evidence upon which the bill was returned was sufficient to justify a conviction, but, if they had been, still, under the terms of the law, the use of the testimony of one of the participants exonerates him from prosecution. In cases where indictments have been returned, and one of the indicted parties was used as a witness for the State, this' would exonerate, even though he be one of the indicted parties. Article 391, supra, was enacted for the purpose of
forcing witnesses to testify
in behalf of the State. He can not plead that rule of evidence which does not permit a witness to incriminate himself, because when he testifies he is exonerated from punishment, and the incriminating testimony can never be used against him. The mere fact that the participant is
required to testify
for the State exonerates him from punishment.”
This opinion was written by Judge Davidson and concurred in by the entire court, and in it is seen this expression and used: “This article was enacted for the purpose of
forcing witnesses to testify,
and that when a witness is
exonerated from punishment
he can not plead the rule of evidence which does not permit a witness to incriminate himself.” No more terse and forcible expression of the law could be made. See
also Elliott v. State, 19 S. W. Rep.,
249;
Taylor v. State, 50 Texas Crim. Rep., 183, and eases therein cited. So it may be said to be an unbroken rule of decisions both in this court and in the Supreme Court from 1855 down to the present time that a witness may be
compelled to testify
when under the law he is given complete immunity from punishment for the transaction about which he is called to testify, and the dissenting opinion in the Napoleon case is the first time that any judge of either this court or the Supreme Court has announced the rule that the
consent
of the witness must first be obtained. This would render'ineffective our laws in regard to immunity from punishment, and place a barrier to the enforcement of the law in many instances. The sovereignty of this country rests in the individuals composing it, and we believe as firmly as any in protecting the individual in all his rights, and believe the declaration in our Constitution that “no citizen shall be compelled to give evidence against himself” a wise provision, and that the history of the times past when inquisitorial methods were adopted, and the citizen punished for matters thus disclosed by himself proves the wisdom of the fathers in first placing it in the Constitution of 1776, and in engrafting it in every State Constitution since that time. It is right, the individual should thus be protected, but when the law immunes him from punishment and he seeks to use this provision, not as a shield to himself but as a shield to others, the reason for this rule of law no longer prevails, and he will not be permitted to protect others from punishment. He is and must be protected before he can be compelled to testify, but when afforded ample and full protection from punishment, then the interest of the State, the interest of society, and the law requires that he shall give such testimony within his knowledge as will aid in bringing criminals to justice and mete out to them their merited punishment.
Not only is this the rule of law in this State, but owing to the importance of this question, we have studied the law as applied in other jurisdictions, and the great weight of authority is that the witness may be compelled to testify when he has been granted immunity, and is no longer subject to punishment in regard to the matters inquired about. Relator in his brief cites us to the case of Counselman v. Hitchcock, 142 U. S., 547, in which case Counselman was adjudged guilty of contempt for refusing to answer certain questions propounded to him by the grand jury, on the ground that to answer such questions might tend to criminate him. The court held that as the law then in force did not give Counselman complete immunity from punishment he was not compelled to answer the questions and discharged him. In that case it was held: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statute does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional pro
vision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” To this statement of the true rule of law we give our hearty assent— the “law must afford absolute immunity against future prosecution for the offense to which the question relates,” or the witness can not be compelled to testify. After the rendition of the above opinion, Congress amended section 860 referred to as to give complete immunity from punishment, and the question again came before the Supreme Court of the United States in the ease of Brown v. Walker, 161 U. S., 591 (40 L. Ed., 819). In this case Brown had been summoned before the grand jury and refused to answer questions propounded to him on the ground that to do so would tend to incriminate him. The court holds, speaking through Justice Brown:
“1. The Act of Congress of February 11, 1893
(27
Stat. at L., 443). exempting a witness from any prosecution on account of any transaction to which he may testify, sufficiently satisfies the constitutional guaranty of protection against being compelled in any criminal case to be a witness against himself.
“2. Where one State adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the State from which they are taken.
“3. The fact that a witness can not be shielded by statute from the personal disgrace or opprobrium attaching to the exposure of his crime does not render a statute exempting him from prosecution therefor insufficient to satisfy the constitutional guaranty of protection against being compelled to be a witness against himself.”
The law furnishing Brown complete immunity, he was remanded to custody, and he was
compelled
to answer the questions propounded. The opinion in that case discusses the reasons for the rule at length, and it is referred to for a learned discussion of the question. This question was again before the Supreme Court of the United States in the case of Interstate Commerce Commission v. Baird et al., 194 U. S., 25, and it was again held that where the law furnishes complete immunity from prosecution a witness may be compelled to testify. For other cases so holding see Ex parte Cohen, 104 Cal., 524; People ex rel. Akin v. Butler, 201 Ill., 236; State v. Nowell, 58 N. H., 314; People v. Sharp,
107
N. Y., 427; State v. Morgan, 133 N. C., 743; Hendrick v. Com., 78 Va., 490; Ex parte Burkett, 106 Mo., 602; State v. Quarles, 13 Árk., 307; Higdon v. Heard, 14 Ga., 255; Wilkins v. Malonee, 14 Ind., 153; Hirsch v. State, 8 Bext (Tenn.), 89; Frizzee v. State, 58 Ind., 8; State v. Jack, 76 Pac. Rep., 911; People ex rel. Lewisohn, 179 N. Y., 594; Re Briggs, 135 N. C., 118. Many other cases could be cited and we quote as stated in Cyc., vol. 30, page 1161:
“In a number of the States having constitutional provisions similar to that contained in the Fifth Amendment to the Constitution of the United States, it has been held that statutes which provide that a witness may be compelled to give self-criminating evidence, but that his answers
shall not thereafter be used as evidence against him, fully preserve the constitutional privilege.
“It is the better opinion, however, that the constitutional privilege of refusing to answer can not be taken away by statute, unless absolute indemnity is provided, and that nothing short of complete immunity to the witness, an absolute wiping out of the offense as to him, so that he can no longer be prosecuted for it, will furnish that indemnity, and that statutes aiming to take away the constitutional privilege without providing complete immunity are unconstitutional.
“If, however, he is thus fully protected by statute, he may be compelled to answer, though his testimony may show that he has committed a crime.”
Under these texts is cited cases from almost every State in the Union, and we adhere to the rule that, “nothing short of complete immunity to the witness” will justify a court in compelling a witness to testify, and if the Codes of our State, as construed in an unbroken line of decisions, had not held that when the district attorney tenders immunity from punishment, and such offer receives the sanction and approval of the district judge, that this furnished absolute and complete immunity from punishment for offenses about which he might be questioned and called to testify, we would hold that relator was within the protection of-section 10 of the Bill of Rights and he could not be compelled to testify. But as the proof in this case shows that relator was extended and accepted immunity and testified before the grand jury; that that body returned no bill against him, and he has never been charged by complaint or otherwise with this offense; that when the habeas corpus trial was called, and he refused to testify, he was again tendered complete immunity from punishment by the district attorney and the district judge which gave him absolute immunity from punishment, and he was only committed to jail for contempt after a refusal to testify under such circumstances, it is our opinion that he should be remanded to custody, and it is so ordered.
The fact that on the trial the relator may not testify truthfully and thereby become subject to a prosecution for perjury, need not be considered. The immunity given relator was immunity from punishment for any connection he may have had with the killing of his father, and if he thereafter commits perjury, be connected with the killing of another, if another, or thereafter commits any other offense, the immunity given for this crime would be no bar to a prosecution for an offense of any character thereafter committed.
The relator is remanded.
Relator remanded to custody.
DAVIDSON, Judge, dissents.