Appellant strenuously insists that we were in error in disposing of bill of exceptions No. 8, in upholding the decision in the case of Edwards v. State, supra, and says that the same is in direct conflict with the opinion in Johnson v. State, 272 S.W. 783. We do not think these two cases are in such conflict.
Unquestionably one accused of crime cannot be forced to give evidence against himself, but such a right can be waived, and we are constrained to agree with the Edwards case, supra, that when a defendant takes the witness stand he then opens the way at least for an examination of matters that did not occur while he was in custody or arrest on such charge.
We do not agree that the Johnson case, supra, holds in effect that when one charged with crime voluntarily takes the stand, that he cannot be asked any question that might tend to incriminate him. If such were the law there would be no reason for cross-examination of a defendant who voluntarily took the stand in his own behalf.
The Johnson case is based on the reasoning of Skirlock v. State, 272 S.W. 782; Ripley v. State, 58 Tex.Crim. R.,126 S.W. 586, and Thompson v. State, 88 Tex.Crim. R.,224 S.W. 892. All of these cases relate to the silence of the accused while under arrest and in custody, and do hold that accused's silence at such time cannot be shown as a circumstance against him. The basis of such holding rests upon the statute, Art. 3, C. C. P., which provides that an accused "shall not be compelled to give evidence against himself," but such right can be and is waived when he voluntarily takes the witness stand. Pyland v. State, 33 Tex.Crim. R., 26 S.W. 621; Hargrove v. State, *Page 230 33 Tex. Crim. 431, 26 S.W. 993; Thomas v. State, 33 Tex.Crim. R.,28 S.W. 534; Brown v. State, 38 Tex.Crim. R., 44 S.W. 176.
In the case of Henderson v. State, 101 S.W. 208, this identical question has been written upon, and it holds in effect that an accused could be questioned while on the witness stand as to whether he had ever told anyone before of the transaction with the same explanation as he testified to on the stand, and whether he had ever mentioned this defense before. This was held to be a proper question on cross-examination, and the Henderson case has been cited with approval as late as Taylor v. State, 118 Tex.Crim. R., 42 S.W.2d 426. The Johnson case, supra, where it holds otherwise is overruled. This also seems to be the rule in civil cases. See Gulf, Colorado Santa Fe R. Co. v. Matthews, 100 Tex. 6393 S.W. 1068; Fort Worth D.C. R. Co. v. Yantis, 185 S.W. 969.
In regard to the holding in such Johnson case, that the State could not show the failure of the accused to give his version of an accidental killing when, at some date after the homicide, he was conversing with his wife, and again with a brother-in-law, we are not impressed with the soundness of such ruling, based, as the decision in said case is, upon cases dealing only with an accused's silence while in custody of an officer.
In this instance appellant was endeavoring to explain away the odium created by his hasty trip from Mineral Wells soon after the killing; the State had a right to try to combat that testimony, as well as to show, if they could, when appellant had decided upon his plea of self-defense.
For the reasons herein stated the leave to file second motion for a rehearing is denied.