Page 432


278 S.W. 432


DUNAGAN
v.
STATE.


(No. 9657.)

Court of Criminal Appeals of Texas.
December 16, 1925.

        Commissioners' Decision.

        Appeal from District Court, Freestone County; J. R. Bell, Judge.

        Sol Dunagan was convicted of manufacturing intoxicating liquor, and appeals. 
Reversed and remanded.

        Bryant & Goar, of Wortham, and Edwards & French, of Fairfield, for appellant.

        Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of 
Tyler, for the State.

        BAKER, J.

        Appellant was convicted in the district court of Freestone county of the offense of 
unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in 
the penitentiary.

        On hearing the motion, the record discloses that the appellant was brought before the 
grand jury, and therein disclosed and testified to the facts and transactions covering the 
offense alleged in the indictment. It is the contention of the appellant in this case, by 
reason of the grand jury having subpœnaed and called him as a witness before it, and 
interrogating him concerning the facts and having him testify thereto, upon which this 
indictment is based, that he was immune from prosecution, and that his motion to dismiss 
said indictment should have been granted. After a careful examination of this record, we 
are forced to the conclusion that appellant's contention under the law is correct.

        Penal Code of 1925, art. 694, is as follows:

        "No person shall be excused from testifying against persons who have violated any 
provision of this chapter for the reason that such testimony will tend to incriminate him, 
but no person required to so testify shall be punishable for acts disclosed by such 
testimony."

        Douglas v. State, 99 Tex. Cr. R. 413, 269 S. W. 1041, this court, through Presiding 
Judge Morrow, in construing said statute, supra, involving a similar case, stated:

        "The wording of the statute makes it plain that it was intended that one accused of 
violating the laws against the traffic of intoxicating liquors might be called upon to testify 
to facts, but if he truthfully discloses his connection with the offense, he is immune from 
prosecution upon the same facts. * * * The right of one to refrain from giving testimony, 
the nature of which is to reveal his criminal connection with an offense denounced by 
law, is one of the guarantees of the Bill of Rights (Const. art. 1, § 10), and it is overcome 
only by the tender of immunity, which obviously is the purport of the statute under 
discussion" — citing many authorities.

        If the evidence upon another trial is the same as presented in this record, appellant's 
motion to dismiss the indictment should be sustained.

        For the error above mentioned, the judgment of the trial court is reversed and the 
cause remanded.

        PER CURIAM.

        The foregoing opinion of the Commission of Appeals has been examined by the 
judges of the Court of Criminal Appeals and approved by the court.