XI. IMMUNITY FROM PROSECUTION

§ 210. Immunity of accomplices testifying for state-In general. Generally an accomplice to a crime, if called and examined as a witness by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offense, provided it appears that he acted in good faith and that he testified fully and fairly.98 By so testifying, however, he merely acquires an equitable claim for executive clemency. He is not entitled to a pardon as of right, nor can he plead this equitable claim in bar of any indict

99

98 United States. United States v. Ford, 99 U. S. 594, 25 L. Ed. 399; Ex parte Irvine, 74 Fed. 954; United States v. Hinz, 35 Fed. 272; United States v. Lee, 4 McLean 103, 26 Fed. Cas. No. 15,588; United States v. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319. And see United States v. Lancaster, 44 Fed. 896, 10 L. R. A. 333.

Alabama. Long v. State, 86 Ala. 36, 5 So. 443.

Maryland. Lowe v. State, 111 Md. 1, 73 Atl. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744.

Missouri. State v. Guild, 149 Mo. 370, 50 S. W. 909, 73 Am. St. Rep. 395.

Oklahoma. Scribner V. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381.

Texas. Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

When promises of immunity and protection are made by the public prosecutor or with his authority, "the court will see that due regard is paid to them and that the public faith which has been pledged by him is duly kept." Com. v. St. John, 173 Mass. 566, 54 N. E. 254, 73 Am. St. Rep. 321.

Some of the elements of this usage had their origin in the ancient and obsolete practice called approvement. For an explanation and history of this practice, see United States v. Ford, 99 U. S. 594, 599, 25 L. Ed. 399; State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174; People v. Whipple, 9 Cow. (N. Y.) 707; Com. v. Dabney, 1 Rob. (Va.) 696; Byrd v. Com., 2 Va. Cas. 490.

This rule does not obtain in Virginia, especially in view of a provision of the statute that "approvers shall never be admitted in any case whatsoever;" and in that state an accomplice who testifies against his associates in guilt has no right to a pardon which a court of law will recognize, and no right to demand from the court a continuance of the case against him to give him an opportunity to apply for a pardon. Com. v. Dabney, 1 Rob. (Va.) 696; Byrd v. Com., 2 Va. Cas. 490.

99 United States. United States v. Ford, 99 U. S. 594, 25 L. Ed. 399; Ex parte Irvine, 74 Fed. 954; United States v. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319. Alabama. 36, 5 So. 443. Kansas.

4 Kan. 225.

Long v. State, 86 Ala.

See Cummings v. State,

Maryland. Lowe v. State, 111 Md. 1, 73 Atl. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744.

ment against him for such offense, nor avail himself of it as a defense upon his trial, unless the statute so provides,1 and the prosecuting attorney cannot, by agreement, enlarge his rights in this respect, in the absence of statutory authority. And in some jurisdictions it has been held that he has not even an equitable right to clemency if he testifies voluntarily, without any express or implied promise having been made by the state to induce him to do so, and that, under such circumstances, the prosecuting attorney is under no obligation to refrain from prosecuting him.3 Under

some of the statutes, however, the prosecuting attorney, with the consent of the district judge, has power to grant a witness who testifies for the state absolute immunity from prosecution for any offense growing out of the matter in respect to which he so testifies, and an agreement by them granting such immunity will be enforced at the instance of the witness.4

In some states it is held that it is the province of the public prosecutor and not of the court to determine whether or not an accomplice who is willing to criminate himself and his associates shall be called and examined as a witness for the state, but there is authority to the effect that the matter rests in the discretion of the court where such associates are tried. In those jurisdictions where a nolle prosequi can only be entered with the consent of the court, the court must, of course, exercise supervision over the question." And in some states an agreement admitting an accomplice to testify in consideration of his immunity from prosecution is not binding on the state unless made with the consent of or approved by the court. It has been held that if the witness offered appears to

of immunity made by persons other than the public prosecutor and without his authority, and a promise made by police officers cannot be pleaded in bar of the prosecution. Com. v. St. John, 173 Mass. 566, 54 N. E. 254, 73 Am. St. Rep. 321.

4 Hardin v. State, 12 Tex. App. 186; Bowden v. State, 1 Tex. App. 137; Ex parte Muncy, 72 Tex. Cr. 541, 163 S. W. 29; Young v. State, 45 Tex. Cr. 202, 75 S. W. 23; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

Where the courts of two counties have concurrent jurisdiction of the offense, such an agreement by the district attorney of the county which first takes jurisdiction, approved by the court, bars a prosecution in the other county. Young v. State, 45 Tex. Cr. 202, 75 S. W. 23. But an agreement made by the district attorney and the court of a county in which the defendant could not be tried because the court of another county had previously obtained juris

diction of the offense affords the witness no protection. Johnson v. State, 67 Tex. Cr. 1, 148 S. W. 300.

5 United States v. Ford, 99 U. S. 594, 25 L. Ed. 399; United States v. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319; Runnels v. State, 28 Ark. 121; Newton v. State, 15 Fla. 610; State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518.

6 In United States v. Hinz, 35 Fed. 272, it is said that whether an accomplice will be permitted to testify rests in the discretion of the court, and this is the English rule. See United States v. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319; People v. Whipple, 9 Cow. (N. Y.) 707; Wight v. Rindskopf, 43 Wis. 344.

7 Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

8 An agreement made with the prosecuting attorney alone, without the advice or consent of the court, affords the witness no protection although he performs such agreement.

be the principal offender, or has been indicted for other crimes,10 he will be rejected.

Usually where the accomplice has fully performed his agreement to testify against his co-defendants, the prosecuting attorney may enter a nolle prosequi as to him,11 especially if the power to pardon before conviction does not exist.12 A nolle prosequi may be entered with the consent of the court in those jurisdictions where such consent is required, 13 and statutes sometimes expressly authorize a dismissal of the indictment as to the witness on motion of the prosecuting attorney.14 Where there is no power of pardon before conviction, the witness may be put on trial, and, if convicted, the court will recommend the granting of a pardon to him,15 and may defer sentence until an application for a pardon can be made, 16 or the court may permit him to plead guilty to a lesser degree of the offense charged,17 or may direct his acquittal at the trial for

Whitney v. State, 53 Neb. 287, 73 N. W. 696; Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381.

Neither the county attorney alone, nor a justice of the peace, nor any inferior tribunal can grant immunity, but it can only be secured by the action of a court having jurisdiction to finally try the matters with reference to which the immunity is claimed. Faucett v. State, 10 Okla. Cr. 111, 134 Pac. 837, L. R. A. 1918 A 372; Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381; Regan v. State, 49 Tex. Cr. 443, 93 S. W. 733; Cox v. State (Tex. Cr.), 69 S. W. 145; Tullis v. State, 41 Tex. Cr. 87, 52 S. W. 83; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682; 40 Am. St. Rep. 763.

United States v. Hinz, 35 Fed. 272. See People v. Whipple, 9 Cow. (N. Y.) 707.

10 See Wight v. Rindskopf, 43 Wis. 344.

11 United States v. Lee, 4 McLean (U. S.) 103, 26 Fed. Cas. No. 15,588; Lowe v. State, 111 Md. 1, 73 Atl. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744; Com. v. St. John, 173 Mass. 566,

54 N. E. 254, 73 Am. St. Rep. 321. And see United States v. Hinz, 35 Fed. 272; Whitney v. State, 53 Neb. 287, 73 N. W. 696.

12 United States v. Ford, 99 U. S. 594, 25 L. Ed. 399; State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518.

13 State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174; Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915 B 381; Bowden v. State, 1 Tex. App. 137; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

The granting of a nol. pros. is within the control of the court, but is usually left to the discretion of the prosecuting attorney. State v. Moody, 69 N. C. 529.

14 People v. Peter, 48 Cal. 250. 15 State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174.

16 United States v. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319; Lowe v. State, 111 Md. 1, 73 Atl. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744; People v. Whipple, 9 Cow. (N. Y.) 707.

17 State v. Graham, 41 N. J. L. 15. 32 Am. Rep. 174.

the purpose of qualifying him as a witness for the state.18 It has also been suggested that the court may advise the prisoner to plead guilty with a reservation of the right to withdraw such plea and plead over to the merits if his application for pardon shall be unsuccessful,19 but this suggestion has been disapproved in at least one state.20 In jurisdictions where the power of pardon exists before as well as after conviction, it is generally held that the court will, on motion, postpone the trial of the witness to enable him to apply for a pardon.21 In Texas the right to immunity under an agreement made with the district attorney with the consent of the court is properly presented to the court by plea,22 and such an agreement entitles the witness to a dismissal as a matter of right.23

§ 211. -Extent of right and forfeiture thereof. An agreement granting immunity can be made only with respect to a particular transaction under investigation.24 The protection of the witness does not extend to distinct offenses, not growing out of or connected with the transaction as to which he testified.2 But it does extend to any

18 State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174.

19 See United States v. Ford, 99 U. S. 594, 25 L. Ed. 399.

20 State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518.

21 United States v. Ford, 99 U. S. 594, 25 L. Ed. 399; United States v. Hinz, 35 Fed. 272; United States v. Lee, 4 McLean (U. S.) 103, 26 Fed. Cas. No. 15,588; United States V. Hartwell, 12 Int. Rev. Rec. 50, 26 Fed. Cas. No. 15,319. And see Whitney v. State, 53 Neb. 287, 73 N. W. 696.

Of course this cannot be done where the pardoning power can only be invoked after conviction. State V. Guild, 149 Mo. 370, 50 S. W. 909, 73 Am. St. Rep. 395; State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174; State v. Newell, 172 N. C. 933, 90 S. E. 594; State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

22 Hardin v. State, 12 Tex. App.

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186; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

23 Hardin v. State, 12 Tex. App. 186; Bowden v. State, 1 Tex. App. 137; Ex parte Muncy, 72 Tex. Cr. 541, 163 S. W. 29; Young v. State, 45 Tex. Cr. 202, 75 S. W. 23; Camron v. State, 32 Tex. Cr. 180, 22 S. W. 682, 40 Am. St. Rep. 763.

24 Ex parte Muncy, 72 Tex. Cr. 541, 163 S. W. 29; Heinzman v. State, 34 Tex. Cr. 76, 29 S. W. 156, 482.

25 State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518; Ex parte Muncy, 72 Tex. Cr. 541, 163 S. W. 29; Tullis v. State, 41 Tex. Cr. 87, 52 S. W. 83; Heinzman v. State, 34 Tex. Cr. 76, 29 S. W. 156, 482.

If he is under indictment for other crimes at the time he testifies, he will be put upon his trial on such other indictment and punished upon conviction. Wight v. Rindskopf, 43 Wis. 344.