Ex parte GREENHAW.

(Court of Criminal Appeals of Texas. Nov. 29, 1899.)

PRISONER-STATE'S EVIDENCE AGREEMENT OF STATE'S ATTORNEY-BAIL.

1. Applicant and others were guilty of murder in the first degree, and the proof evident as to petitioner. He agreed with the state's attorneys to turn state's evidence, and they agreed that he should not be punished, and should be admitted to bail, when he should have reasonably complied with his agreement. Applicant gave evidence according to his agreement on the preliminary examination, and thereafter, and before the trial, being denied bail, applied by habeas corpus for his release. In denying the application the judge remanded the applicant, the order reciting that it was made without prejudice, so far as the matter of bail was concerned, and that he would be entitled to bail at the earliest time at which, in the absence of agreement, he would have been entitled to be bailed or to force a trial, provided he should continue to comply with the agreement. Held to relegate applicant back to his rights under the statute as to bail, regardless of the agreement.

2. An agreement by the state's attorney to grant one guilty of murder in the first degree immunity from punishment, and to admit him to bail on condition that he would turn state's evidence, is, so far as it relates to the item of bail, ultra vires, and the party turning state's evidence is not entitled to bail before the trial and final disposition of the cause against his codefendants.

Appeal from district court, Henderson county; A. D. Lipscomb, Judge.

Application by John Greenhaw for writ of habeas corpus. Application denied, and petitioner appeals. Affirmed.

John S. Jones and Eustace & McDonald, for appellant. N. B. Morris, Guy Green, and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was indicted for three several murders in Henderson county. He sued out an application for habeas corpus before the Honorable 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. N. B. Morris, representing the state of Texas, which agreement was ratified and consented to by Jerry N. 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 impli cate 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. N. 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 bail 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 ase 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 N. 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 Cr. Proc., 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 53 S.W.-65

fact that the court approved the agreement does not change the legal aspects 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 state's 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 Bish. New Cr. Proc. § 1168: "Before testifying, the accomplice has acquired no special privileges. He is not, consequently, entitled to have bail." In Fleming v. State, 28 Tex. App. 236, 12 S. W. 605, 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 cannot 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 (Tex. Cr. App.) 48 S. W. 186, 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 co-defendants; and the statute 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

case.

it may be fairly deduced from the authorities that the state or sovereign can contract with the accomplice upon the following terms only: In consideration that he shall testify fully and fairly as to all he knows in regard to the guilt of his associates in the particular case in which the contract is made, that he will receive immunity from punishment as to such Where the immunity is granted by pardon, as in England, the pardon was extended in the particular case, and necessarily did not include incidental matters in regard to that case. Rice, Ev. p. 519; 2 Bish. Cr. Proc. § 116 et seq.; Rex v. Beardon, 7 Car. & P. 497. In the latter case it was held that the accomplice witness was not entitled to bail pending the disposition of the case against his principal. This is the nearest case in point which I have been able to find. In our own state it is held the contract cannot embrace immunity in other cases. Heinzman v. State, 34 Tex. Cr. R. 76, 29 S. W. 156, 482; Tullis v. State (Tex. Cr. App.) 52 S. W. 83.

4. Again, it is agreed that there must be a compliance with the terms of the contract on the part of the accomplice before he can claim immunity. This appears to be supported by all the authorities. Neeley v. State, 27 Tex. App. 328, 11 S. W. 376; U. S. v. Hinz (C. C.) 35 Fed. 272; Com. v. Knapp, 10 Pick. 477. So it follows, if the accomplice testifies corruptly or falsely, he cannot claim immunity. This would appear to be in harmony with the proposition that this immunity from punishment is not to be extended until after the accomplice has testified. As I understand applicant's contention, he insists that the prosecuting officers representing the state have the right to make a contract with the accomplice, granting him, in consideration of his testimony in the particular case, immunity from punishment in that case, without any interposition or approval of the contract on the part of the court or judge; and, furthermore, that this contract of immunity from punishment embraces everything incidental to that particular case, including the right to bail in a nonbailable case, or the dismissal of such case, prior to the final disposition of the case in which the accomplice is to testify. I cannot regard either of said propositions as sound. As we have seen, in regard to the first proposition, the rule is firmly established in this state that no such contract can be made without the approval of the judge trying the case; and it necessarily follows that any contract made without the consent or approval of the judge is without authority of law. In this particular case, as I understand it, there is no pretense that either the justice of the peace who presided at the examining trial or the judge who presided on habeas corpus trial knew, when applicant testified, that it had been stipulated as a part of the consideration to accrue to applicant that he was to be granted bail pending the final disposition of the cases in which he was to testify. So, if it be conceded that such a stipulation was made

between the district attorney, representing the state, and appellant, it was not ratified by the judge, and was not obligatory and binding upon the state. Moreover, if such an agreement to permit applicant to have bail pending the disposition of the cases in which he was to testify had been made by the proper authorities, such a contract was ultra vires, and without authority of law. The right of an accused person to contract for immunity from punishment does not embrace other matters, though they may appertain to the particular case. If the contract could embrace one incident, it could include other provisions; and thus not only might a party claim the right to bail, but he might make and enforce a contract for the absolute dismissal of the case against him as a condition precedent to his testifying against his co-defendant. Immunity from punishment was never intended to announce such a proposition. It simply apprehends immunity from punishment in the particular case; and in England and in most of the states this immunity from punishment is only extended by a pardon, after the witness has fully and fairly testified in the particular case against his co-defendants. Here, as we have seen, an accomplice is not driven to an executive pardon, but is protected by the court itself, which authorizes a dismissal or nolle prosequi of the case. This dismissal is after such accomplice has fully and fairly testified against his co-defendants, and he cannot be said to have fully performed his contract until the final disposition of the case against his co-defendant. His contract is a continuous one, and he has no rights under it until he has finally testified in the case. So the question of applicant's reasonable compliance with his contract cannot arise until the final trial of his co-defendants, as it cannot be known until then whether or not he will fulfill his obligation to testify. He may, at any time before the final trial, refuse to testify against his co-defendant, or testify falsely; and under all the authorities, when he makes a breach of the contract, he is no longer entitled to immunity from punishment under it. If the rule were otherwise in a capital case such as this, applicant might contract for bail, or even for the dismissal of the case against him, to be extended before the final trial of his co-defendant; and he might abscond, or he might attend, and refuse to testify, or testify falsely; and, in either event, he would have the state at a disadvantage. Viewing the question from every standpoint, it occurs to me that the rule which confines a contract between the state and an accomplice to the simple proposition that the state will accord the accomplice immunity from punishment after he has fully and truly testified in the final trial is a safe and sound one. Nor can the applicant complain in this case that he is undergoing a hardship and punishment by being confined in jail pending the final disposition of the case against his co-defendants. The consideration, so far as he is concerned, is

Code Cr. Proc. art. 883. provides that an appeal in a criminal case shall be taken by giving notice thereof in open court, and having the same entered in the record. Held, that a mere recitation in the sentence that defendant had taken an appeal, and that the sentence was suspended until the cause was determined on, was not a substantial compliance with the statute.

Appeal from district court, Val Verde county; J. M. Goggin, Judge.

John Young was convicted of theft, and he appeals. Dismissed.

Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of theft, and his punishment assessed at two years' confinement in the penitentiary, and he appeals.

The assistant attorney general has filed a motion to dismiss this appeal on the ground that the record does not show that notice of appeal was given in the court below. We have examined the record carefully on this subject, and fail to find any order in the transcript showing that notice of appeal was given from the decision of the court below as having been entered of record. We do find in the bill of exceptions that notice of appeal was given, and we also find at the close of the sentence the following language: "But, inasmuch as the said defendant has taken an appeal in this case, the sentence herein will be suspended until said cause can be determined in said court of appeals." The question here presented is, do these entries constitute that which is required by law? Clearly, the bill of exceptions constitutes no part of the minutes of the court. While the sentence is a part of the minutes of the court, and a very important part, yet we do not believe that the recitation in the sentence that the party has taken an appeal is tantamount to the notice of appeal, and the entry thereof, required under article 883, Code Cr. Proc. It may be possible that the party endeavored to take an appeal without having given the proper notice, and the recitation in the sentence would apparently amount to no more than that. Said article provides, in clear language, that an appeal is taken by giving notice thereof in open court, and having the same entered of record. This is a plain provision of the statute, and a substantial compliance therewith must be made, before an

WALRAVEN v. FARMERS' & MERCHANTS' NAT. BANK et al.

(Court of Civil Appeals of Texas. Dec. 6, 1899.)

CONCLUSIVENESS OF JUDGMENT-FORECLOS

ING MORTGAGES.

In foreclosure the mortgagor's title cannot be put in issue, and hence the judgment is not res judicata against a party claiming independently of the mortgagor.

On rehearing. Reversed.

For former opinion, see 52 S. W. 1049.

KEY, J. Both parties claim under titles emanating from the state. Appellees' is the older title; and, if appellant is estopped from denying its validity, of course it must prevail against his junior title. In affirming the judgment, we approved the ruling of the trial court, in holding that the judgment of the district court of Tarrant county, rendered December 15, 1895, was conclusive, and precluded appellant from assailing appellees' title. Upon further consideration, we are convinced that we committed error in this respect, and that the ruling referred to cannot be sustained upon the record presented to this court. There is no statement of facts in the transcript, and the Tarrant county judgment is described in this manner in the judge's findings of fact: "(4) That on December 15, 1895, in the district court of Tarrant county, Texas, in the cause of John W. Trevathan versus A. N. Schuster et al., being a suit brought to foreclose a mortgage or trust deed on said land and other lands, made by A. N. Schuster and A. Schuster to secure a debt of A. N. Schuster, who claimed title under Smissen, and to which the defendant James Walraven was made a party and duly served, a judgment was rendered against all the defendants, including the defendant Walraven, duly foreclosing said mortgage lien, and decreeing the sale of said land, which was done; and plaintiffs claim under the purchase of same." Appellees claim under the Schuster title; and, if it was shown that that title was in fact litigated in the Tarrant county case, then it would be proper to hold that the validity of that title was now res adjudicata. And the same conclusion might be reached if that issue could properly have been raised in that case. But in an action to foreclose a mortgage, while it is proper to make any one claiming under the mortgagor a party to the suit, the mortgagor's title to the land cannot properly be put in issue. Faubion v. Rogers, 66 Tex. 473, 1 S. W. 166; Wolf v. Harris (Tex. Civ. App.) 48 S. W. 529. The motion