The State's motion for rehearing criticises the opinion reversing the judgment. If the opinion is to be understood, as the State's motion indicates, as holding that peace officers can not become attesting witnesses to a confession, it does not correctly state the statute. It is only when the accused signs a confession by making his mark that such officers are inhibited from becoming subscribing witnesses to the confession. The matter discussed in that connection was, however, not that particular question, but it was the environments of the confession. In fact, that phase of the opinion was directed at the question of voluntariness of the confession and not whether officers were available as subscribing witnesses. Those officers did sign the confession, and an inspection of the opinion, we think, will show that the matter was mentioned as bearing on the situation of appellant at time of confession. The original opinion, we think, sufficiently shows this, but to remove any doubts as contended by the State, it is here announced that it is only when the accused signs a confession by making his mark that peace officers are inhibited from becoming attesting witnesses. The details of the testimony of the district attorney might be given in full in regard to the confession, and his reasons for going from Houston to Huntsville, accompanied by a police officer of Houston, to secure the confession but it is not necessary. The details of the circumstances attending his trip and subsequent matters after arriving at Huntsville in this connection would perhaps be of no particular benefit in this opinion. This was sufficiently mentioned in the original opinion. It is shown by the district attorney in his testimony that the signature of the defendant was obtained in connection with his third interview with him, and in a room in the penitentiary with no one present except himself and the accused, and that defendant signed it in the room only in the presence of the district attorney; that the defendant and district attorney then went with defendant to another room in the penitentiary and had these officers brought in, or at least they came, and were asked to sign as subscribing *Page 262 witnesses. This they declined until the confession had been read to the defendant and he had signed it in their presence. This was done and they then became subscribing witnesses. Those matters were mentioned in the original opinion and are now referred to simply on the question between defendant and the State as to whether that confession was brought about by such inducement as claimed by him and as also affecting the matter of its being voluntary. One of these officers was sheriff of Burleson County, one a deputy sheriff of Grimes County, and one a police detective who accompanied the district attorney to Huntsville. The trial court recognized all this and gave the jury a charge as to whether it was voluntary or not, which fact was to be decided by them. It was an issue whether such confession was voluntary or not. This confession must have been offered or was evidently offered by the State to connect the defendant with the killing. The State thought that this confession was of value, else the efforts made to secure it would not have been put forth. While it may have served to connect the defendant with the homicide, it contained exculpatory statements which, if true, exonerated or at least mitigated any punishment that might be attached to the act of homicide if found guilty. The State was seeking a conviction for murder and obtained it with the death penalty. The statements made by the defendant exculpated him for such heinous offense. The facts do not show that it is a death penalty case. Where the State introduces exculpatory or mitigating statements of the accused it is bound by them unless such statements can be shown to be false, and this is true whether the statements are exculpatory or mitigating. Pratt v. State, 50 Tex. Crim. 227; Combs v. State, 52 Tex.Crim. Rep.. We deem it unnecessary to go into the details of the facts in this connection further than as given in the original opinion. These statements obtained in the confession by the State and introduced by the prosecution are exculpatory within the authorities cited.
In the presentation of the motion for rehearing both on the face of the motion and in the oral argument by the State the prosecution seemed to lose sight of the fact that the case must be viewed from the standpoint of the defendant. The State seemed to be under the impression, apparently at least as it now presents the case, that it should be viewed from the standpoint of the deceased. This is not correct. The defendant is held responsible for what he does and his purpose for doing it and the intent and motive moving him to do the act. There are some things stated in the motion for rehearing that are not found in the record, but it was contended in the argument by the State's counsel that all these things were known to the jury. As to this, this court would have no concern. We pass upon the record as it is presented to us. These matters were not in evidence, and are not sent up in the record. We can not consider such things.
Reviewing the case again in the light of the State's motion and its *Page 263 oral argument we see no reason to change our conclusion as to want of sufficient evidence to justify the verdict rendered in this case.
The motion for rehearing is overruled.
Overruled.
July 5, 1917.