Reversal was predicated upon appellant's bill of exception number four, which the State urges was too general in the objections stated, that the same evidence was developed by appellant's attorney on cross examination of the witness, and that part of the evidence objected to was admissible, and, therefore, a general objection to all of it was unavailing.
The bill of exception in question recites that over appellant's objection Miss Westmoreland testified as follows: "That on the morning after the robbery she was called to the City Jail by the officers, to look at the defendant and hear him talk; that she told the officers what to have the defendant say, and the defendant was required to say the things the officers were instructed to have him say by the witness, and that the witness was in custody of the officers that required the defendant to say the things the witness requested, and from his general appearance, build and voice, the defendant was the one who committed the robbery.
"Be it further remembered, that the State admitted the defendant was in custody at the time herein complained of. *Page 280
"And the defendant objected to the admission of such testimony for the reason that it is not shown to be a part of the res gestae, and did not show that the defendant was the man that committed the offense, and a showing had been made thatthe defendant was in custody at the time he was required toappear before the witness and repeat things that the officerstold him to say, and the defendant further moved the court to instruct the jury not to consider the evidence for any purpose which objection and motion was by the Court overruled, and the defendant then and there excepted * * *"
We think a fair construction of the bill shows that a question of identification of appellant by the witness was involved; that while appellant was in the city jail the witness was taken to said jail and appellant was required by officers to say certain things suggested to the officers by the witness; that after hearing his voice in repetition of the things appellant was told to say the witness identified appellant from his "general appearance, build and voice." There is no doubt that it was not improper for witness to inspect appellant and, if she could do so, identify him from his appearance, and his "voice" as well, if heard in a conversation in which words were not put in his mouth at her suggestion, and he required to repeat them. The recital in the bill that it had been shown that appellant was in custody at the time "he was required to appear before the witness and repeat things that the officers told him to say" was sufficient, we think, to apprise the court that appellant was objecting to such proceeding and to any identification based on that circumstance.
The State having referred us to the witness' cross examination upon the theory that this would cure the error, if any, in admitting her testimony on the point at issue upon direct examination, we observe that the witness in detailing the robbery testified as follows:
"Of course it was so dark I couldn't tell what it was but I could tell he had something in his hand behind his back. I paid particular attention to the voice of the man that committed this robbery and everything he said was vile language, and he did considerable talking during that time."
On the point of identification she testified on direct examination. "The next morning after the robbery I saw the negro that robbed Mr. Wilson, at the City Jail, and on that occasion *Page 281 at the City Jail I had an occasion to hear the negro's voice and listened to him talk and I was able to identify the voice that I heard of the defendant as being the same voice that I heard that committed this robbery. I was able to identify the party who robbed Oran Wilson only by his build. I had a chance to look him over that morning to identify him by his voice and I would say the defendant is the party that robbed Oran Wilson. And I base that identification on his build, general appearance and voice."
On cross examination upon the same issue she testified as follows: "I stated that I saw this defendant at the police station and that was the first time I saw him to see what he really looked like. I was advised before I went down there that I was going there to identify someone. The officer told me they just wanted me to see if he was the right man. There were no other negroes in the police station at the time I was there and this negro was the only one in my presence at that time and I could identify him by his build. There is always a chance of being mistaken in identifying a person from his build alone but it was the same build as the man of the night before. This negro at the station was requested by me through the officers to talk. I told the officers what to ask him to say and they had him to say what I requested. In my request to the officers I stated to them that all he did was to curse and I said that if he did that I think I could identify him by his voice and they had him to curse."
Because counsel for appellant cross examined the witness upon the very same matter which was admitted over objection during the direct examination, developing no new facts, would not nullify his prior objection.
Our statute — Art. 727 C. C. P. (1925), in substance, provides that a confession of an accused shall not be used against him if obtained while he is in jail or custody, unless it is in writing and after a proper warning. If the statement be res gestae the statute is inoperative. The bill of exception here involved recites that the court's attention was called to the fact that the things which happened at the city jail were not res gestae, and therefore, such exception to the operation of the statute was absent in the present instance. The statute has been held not confined to strictly technical confessions, but to cover many acts other than strict confessions. See 18 Tex. Jur. Sec. *Page 282 89, p. 168, and many illustrated cases cited; Branch's Ann. Tex. P. C. Sec. 59, p. 32. The State takes the position that because no words which appellant was directed to use were placed in evidence that nothing criminative against him was shown. We think this beside the point here involved. In Brent's case, 89 Tex.Crim. R., 232 S.W. 845, proof of the mere fact that while in jail he called over the telephone to a certain party was held under the facts there shown violative of the statute, although nothing which was said in the telephone conversation was proven. The Brent case has been cited with approval in Young v. State, 91 Tex.Crim. R., 240 S.W. 930; Williams v. State, 126 Tex.Crim. R., 73 S.W.2d 540.
It is quite certain that if appellant had verbally admitted to Miss Westmoreland or to the officers at the time of her visit to the city jail that he (appellant) was the party who had perpetrated the robbery the night before proof of such admission would have been in violation of the statute. It is equally certain that if appellant had refused to speak the words as directed by the officers, or had refused to speak at all, the fact of such refusal could not have been proven against him. Carter v. State, 23 Tex.Crim. R., 5 S.W. 128; Stanton v. State, 94 Tex.Crim. R., 252 S.W. 519; Myers v. State, 96 Tex.Crim. R., 258 S.W. 821 and cases therein cited; 18 Tex. Jur., Sec. 75, p. 150.
The occurrence in Kennison's case, 97 Tex.Crim. R., 260 S.W. 174, is so similar to what happened in the present case that we are unable in principle to distinguish them. There Kennison was in jail charged with forgery. He was brought to the prosecutor's office and under the latter's direction wrote his (Kennison's) own name and certain other words which he was told to write. Upon the trial these writings were used by the State as standards of comparison to prove that Kennison executed the forged instrument.
It is clear from Miss Westmoreland's testimony that the voice of the robber, especially in the use of curse words and vile language registered upon her mind. She says, "I paid particular attention to his voice." She believed that if she could hear the words used by the robber repeated she would be able to recognize the voice. Appellant was required to repeat the words suggested by the witness. While the words themselves were not proven, the voice of appellant in repeating them was *Page 283 used by the witness as a standard of comparison with the voice registered in her mind at the time of the robbery. It was apparent to the jury, as the record makes it apparent to us, that the probative force of Miss Westmoreland's positive identification of appellant as the robber rested on the incident which occurred at the city jail.
Possibly because of the manner in which the question was presented on original submission the writer of the original opinion based it largely on the proposition that appellant was forced to give evidence against himself. That question, under the facts here present, is so closely related and interwoven with a violation of our statute on confessions (Art. 727 C. C. P.) as to make both principles of law applicable. The present writer has preferred to discuss the incident complained of from the viewpoint of a violation of said Art. 727.
Believing the proper disposition of the appeal was made originally, the State's motion for rehearing is overruled.