On a previous day of this term the judgment herein was affirmed, the writer dissenting. Motion for rehearing calls in review the correctness of the majority opinion. The writer believed at the time of the affirmance that it should not have occurred, and a more careful review has more thoroughly convinced him of the correctness of his original opinion. As Judge Harper, after having investigated the matters involved, has arrived at the same conclusion, I proceed to briefly give the reasons why the motion for rehearing should be granted, and desire to discuss, first, the admission of the confession; second, the former acquittal or jeopardy.
Without stating in detail and with definite accuracy the matter with reference to the admission of the confession, I desire to state, in substance, the bill shows that under a previous charge of rape appellant was arrested, and while under arrest the officer stated that he made a confession with reference to the rape. He was tried before a jury on the charge of rape and acquitted. The indictment in this case charges him with perjury in that he testified, in substance, on the trial of the rape case that he did not have carnal intercourse with the girl alleged to have been assaulted. The details of his testimony are set out and traversed in this indictment, but it is deemed unnecessary to recapitulate it as it is quite lengthy. The testimony of the prosecutrix in the rape case was sufficient, if the jury believed it, to have convicted appellant. His testimony was a direct denial of her testimony, and thus the case went before the jury in the rape trial, with the result in his favor. When appellant made the alleged confessions, if he made such to the officers, he was under arrest, unwarned and the facts were not reduced to writing. Under all the authorities this evidence could not have been introduced against him in the rape case. The authorities are collated in Mr. Branch's excellent work on Criminal Law, where he thus states the rule: "Under the present statute, oral confessions made while defendant is in confinement, or in custody of an officer, are inadmissible, unless in connection with such confession defendant makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt." The authorities are collated by Mr. Branch and are not here repeated. Now a confession must be in writing and show the statutory warning on the face of the confession. Even parol testimony or recitals in the officer's certificate will not supply the omission. See section 220 of Branch's Criminal Law for collated authorities. Since the amendment of the statute requiring confessions to be in writing and attested as the legislative act demands, verbal confessions can not be used when objections are interposed. If this were not true, the statutory rule would be useless and of no effect. The reason why written confessions are required in the place of oral confessions is too well known in Texas now to discuss. Here, the confessions were not reduced to *Page 25 writing, the party was not warned, and it is not contended that by reason of the verbal confession any fact was discovered that was already known to the parties. The confession or admissions were made, however, with reference to rape and not perjury, and there is no claim, or shadow of claim, that they were part of the res gestae either of the alleged rape case or the charge of perjury. So we have the question of confessions, verbal in nature, made in regard to a rape transaction used in the trial of the perjury case. We would think the question was too well settled at this late day to require discussion, that confessions made in one case can not be used in another case under the circumstances shown by this bill of exceptions. There are quite a number of cases so holding in Texas. In Robinson v. State,55 Tex. Crim. 42, Judge Brooks, writing for the court, lays down the rule, that upon trial of horse theft, where it was shown that while the defendant was under arrest for another offense he made statements with reference as to how he obtained the horse for the theft of which he was being tried, the same were not admissible in evidence, citing quite a number of cases, among others, Davis v. State, 19 Texas Crim. App., 201; Taylor v. State, 3 Texas Crim. App., 387. Grosse v. State, 11 Texas Crim. App., 364; Neiderluck v. State, 21 Texas Crim. App., 320, and Carter v. State, 23 Texas Crim. App., 508. Other cases might be cited, but it is thought to be unnecessary. The question here raised was not solved by the decision in the case of Mathis v. State, 39 Tex.Crim. Rep., and that line of authorities. In this case the statement was with reference to a past transaction at the time it was made, otherwise it could not have been what we properly term a confession, and it was not res gestae. A confession, strictly speaking, must be with reference to some past transaction. A party can not make a confession of a future matter. Such statement could not be a confession. The confession might be brought so close to the immediate fact or the immediate act of the corpus delicti as to be at the same time a confession and res gestae. Under that state of case it might be used, although the party is under arrest, on the theory that it was a part of the res gestae, as was decided in Powers v. State, 23 Texas Crim. App., 42. This confession was made with reference to rape, and used in a perjury case growing out of the rape case. This was not permissible under any of the authorities, and it is deemed unnecessary to discuss that question further.
The second question, that is, appellant had been previously acquitted, was properly raised. The writer is of the opinion that this proposition should have been sustained. The rape case narrowed itself down to a conflict of the testimony between appellant denying the rape and the prosecutrix asserting appellant's guilt of that offense. The rape case seems to have been tried practically upon the testimony of these two witnesses, one affirming, the other denying. The jury acquitted appellant, taking his view of the case. The perjury assigned in the indictment could not be sustained without first having found that appellant's testimony in the rape case was false and the girl's testimony true. The jury adjudicating that question in the rape case found appellant's testimony *Page 26 to be true and the girl's false. The question, therefore, as to that issue, had been definitely determined between the State of Texas and the defendant in his favor, and the two cases, rape and perjury, had so entwined themselves under the facts that the jury convicting appellant of perjury had necessarily to decide that he was guilty of the rape, and that his testimony denying it was false and the girl's assertion against his testimony was true. This was the very question adjudicated in the rape case and settled by that jury favorably to appellant. The State, like any other party, is bound by a judgment to which it is a party. We are freed from any trouble growing out of the doctrine of carving, as it is held to apply to the question of former conviction and former acquittal, because the rape case and this perjury case are founded on the identical facts. The rule then laid down in Simco v. State, 9 Texas Crim. App., 338, and Wright v. State, 17 Texas Crim. App., 152, have here no application. The doctrine of carving is not a part of this case, and could not be under the record. This question of jeopardy as here presented does not seem to be entirely a novel one. See Cooper v. Commonwealth, 51 S.W. Rep., 789; Petit v. Commonwealth, 57 S.W. Rep., 14; U.S. v. Butler, 38 Fed. Rep., 498; Coffey v. U.S.,116 U.S. 436, 29 L.Ed., 684; Shideler v. State, 16 L. Rep. Ann., 225. The latter is an Indiana case. The case of Cooper v. Commonwealth, supra, is very much like the present case. In that case the grand jury of Rowan County indicted appellant as living in adultery with Libbie Purvis. On the trial of the case he swore he had not had carnal intercourse with her. Upon this perjury was assigned. He was acquitted of the adultery case, and out of his testimony in that case grew the subsequent perjury prosecution. Quoting from that case we find this language:
"The principal question to be considered is the effect which is to be given to the indictment, trial, verdict and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant can not be guilty in this case if he was innocent of the charge contained in the other indictment. His guilt or innocence of the offense of having had carnal sexual intercourse with Libbie Purvis was the exact question which was tried in the first proceeding, and as a result of that trial the defendant was found not guilty. In order to convict him in this case, it was necessary for the jury to believe that he was guilty of the identical offense for which he had been tried and acquitted under the other indictment, as it is evident that, if he was innocent of having had carnal intercourse with Libbie Purvis, he was not guilty of false swearing when he stated that he had not had such intercourse with her. We therefore have as a result of the trial of appellant under these two indictments, a verdict and judgment finding him not guilty of the offense of having had carnal sexual intercourse with Libbie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charged, and the second jury found him guilty of a felony because he testified that he was not guilty of such *Page 27 misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It appears to us from the conflicting character of the testimony in the case upon the question of defendant's guilt or innocence that a verdict of the jury might have been upheld in the first case whether found one way or the other, but certainly the finding of the jury must be conclusive of the fact considered as against the commonwealth, and preclude any further prosecution which involves the ascertainment of such fact.
"A question analogous to the one at bar was considered in the case of Coffey v. United States, 116 U.S. 436, 29 L.Ed., 684, the facts in which case are about as follows: Coffey was a distiller, and was proceeded against under a section of the statute for defrauding, or attempting to defraud, the United States of the tax on spirits distilled by him, and the copper stills and other distillery apparatuses used by him and the distilled spirits found on his distillery premises were seized. One section of the statute provides, as a consequence of the commission of the prohibited act that this certain property should be forfeited, and that the offender should be fined and imprisoned. Coffey was first proceeded against on the criminal charge, and acquitted. Subsequently a proceeding to enforce the forfeiture against the res was instituted. The defendant in the proceeding in rem relied upon his acquittal under the criminal charge, and Judge Blatchford, in delivering the opinion of the court, said: `Where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt, and that on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States in rem. Nevertheless, the fact or act has been put in issue, and determined against the United States, and all that is imposed by the statute as a consequence of guilt is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it.' And the conclusion reached in that case is in consonance with principles laid down by the United States Supreme Court in the case of Gelson v. Hoyt, 3 Wheat., 246, 4 L.Ed., 381. In the case of Rex v. Kingston, 20 How. St. Tr., 355, 538, the court held: `The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court.' And in the case of United States v. McKee, 4 Dill., 128, the defendant had been convicted and punished under a section of the Revised Statutes for conspiring with certain distillers to defraud the United States by unlawfully removing distilled *Page 28 spirits without the payment of taxes thereon. He was afterwards sued in a civil action by the United States, under another section, to recover a penalty of double the amount of the taxes lost by the conspiracy and fraud. The court held that the two alleged transactions were but one, and that the suit for the penalty was barred by the judgment in the criminal case. The decision was put on the ground that the defendant could not be twice punished for the same crime, and that the former conviction and judgment were a bar to the suit for the penalty. And Judge Van Fleet, in his Treatise on the Law of Former Adjudications (p. 1242, sec. 628), says: `If there is a contest between the State and the defendant in a criminal case over an issue, I know of no reason why it is not res judicata in another criminal case'; citing a number of American decisions in support of the text. Appellant in this case had already been tried and acquitted of the offense of having had carnal sexual intercourse with Libbie Purvis, and the judgment in that case is res judicata against the commonwealth, and he can not again be put on trial where the truth or falsity of the charge in that indictment is the gist of the question under investigation.
"It therefore follows that appellant was entitled to a peremptory instruction to the jury to find him not guilty." Petit v. Commonwealth, supra, was by the same court decided as the case above quoted.
It is unnecessary, the writer thinks, to follow the line of authorities further. The reasoning of the court in Cooper v. Commonwealth, supra, the writer believes, lays down the correct doctrine. The matter between the State of Texas and the defendant was the guilt of the defendant in the rape case. The jury decided he was innocent, and acquitted him. To charge him with perjury in that case, he swearing exactly opposite what the girl swore, is but a retrial of the rape case under the perjury indictment. If he did not commit the rape, as the girl swore he did, he could not be guilty of perjury here as he was not guilty of rape in the other case. The issue was fairly and squarely presented, met and decided. The issue here is the same, the facts are the same, and to try him now under the perjury case would be but to try him a second time for the rape, alloting the punishment for perjury instead of rape. If he can be convicted of perjury in this case, if he should again take the stand and swear again he did not commit the rape as he swore on the trial of the rape case, then he can be prosecuted for the perjury committed in that case, and as often as the case comes in court it would follow on the same facts there can be an endless number of cases of perjury, for his testimony would be the same in each succeeding case to be followed by other indictments charging perjury.
There are other interesting questions in the case, one of which will be briefly noticed, that is, the motion to quash the indictment. Mr. Branch of counsel for appellant has filed a very able argument in support of the motion to quash the indictment, showing its invalidity to charge the offense in form and matters required by law. The writer believes under the authority of Wynne v. State, 60 Tex.Crim. Rep., and McCoy v. State,43 Tex. Crim. 606, and that line of cases, the indictment *Page 29 is insufficient to charge the offense, on the line of reasoning contained in those cases. Perjury can not be charged on the main fact. Buller v. State, 33 Tex.Crim. Rep.. Under the views of the writer the judgment ought to be reversed and the prosecution dismissed, but inasmuch as my brethren will not agree with me on the insufficiency of the indictment, it is ordered that the judgment of affirmance be set aside, the motion for rehearing granted, and the judgment reversed and the cause remanded.
Reversed and remanded.