In concurring with Judge Davidson in granting the rehearing and reversing and remanding the case, I do not want to be understood as agreeing to that part of his opinion which holds that the plea of former jeopardy should have been sustained. On this question I concur in the opinion of Presiding Judge Prendergast. It is true that appellant had been acquitted of the crime of rape, and that a portion of the elements of that offense was that he had carnal intercourse with Viola Johnson, but another element of that offense was that the girl must have been under the age of fifteen years at that time. So the issue presented in the rape case was that appellant had intercourse with the girl when she was under fifteen years of age. Even though the jury found and believed in the rape case that appellant had had acts of intercourse with the girl, this would not have authorized his conviction of the crime of rape tried for that offense. So the issues in the perjury case and in the rape case were not the same, — in the rape case it was essential to prove that the girl was under fifteen years of age before a conviction could be had. In the perjury case no such allegation was made, nor was it necessary to make any such proof. Our court has frequently held that the evidence must be sufficient to show the identity of thevery acts or omissions which constitute the offense, and the acts which constitute the offense for which the former acquittal was had must be the very acts which constitute the offense on trial. Kain v. State, 16 Texas Crim. App., 282; Hooper v. State, 30 Texas Crim. App., 412; Fehr v. State, 36 Tex.Crim. Rep.; Morton v. State, 37 Tex.Crim. Rep.. Again, it has been held that if the two indictments are so diverse as to preclude the same evidence from sustaining both, the jeopardy is not the same. Parchman v. State, 2 Texas Crim. App., 228; Stewart v. State, 35 Tex.Crim. Rep.; Mercer v. State, 17 Texas Crim. App., 452. Mr. Branch in his work on Criminal Law, sec. 398, correctly states the rule to be: "Plea is not good if the evidence sufficient to support the second indictment would not have been sufficient to secure a legal conviction upon the first indictment," citing Lowe v. State, 4 Texas Crim. App., 34; Wilson v. State, 16 Texas Crim. App., 497; Kellett v. State,51 Tex. Crim. 641; Morgan v. State, 34 Tex.Crim. Rep., and numerous other cases. In the rape case convincing proof that appellant had had *Page 30 intercourse with Viola Johnson would have been insufficient to sustain a conviction. In this case proof of that fact alone would be sufficient, and therein lies the distinction, which use is further illustrated by the opinion of Judge Hurt in the case of Nance v. State, 17 Texas Crim. App., 385. In that case appellant was tried under an indictment charging him with incest with Pauline Leitz. He was acquitted. An indictment was then returned charging him with incest with Pauline Seitz. He filed a plea of former acquittal. It was held not to be good, as evidence in the first case that he had carnal knowledge of Pauline Seitz would not have sustained a conviction under indictment alleging the name of the girl to be Pauline Leitz. The State having alleged the girl's name to be Pauline Leitz, had to prove not only that he had carnal knowledge of a girl but that her name was Pauline Leitz, and failing to make that proof, an acquittal followed, but this did not prevent an indictment for incest with Pauline Seitz, although it was the same girl intended to be alleged in the first indictment, and the evidence was identical, the witnesses the same, and the facts the same, except that the girl was named Pauline Seitz instead of Pauline Leitz.
As to the Kentucky case quoted from, Cooper v. State, 51 S.W. Rep., 789, if the Kentucky statute defines a single act of intercourse to constitute adultery under their code, there might be strength in the opinion. But if the Kentucky statute follows the Texas statute in defining the offense: habitual carnal intercourse, or intercourse with a woman while living with her, when one of them is married to some other person, then the Cooper case is without authority to sustain it, and should and will doubtless be overruled by the Kentucky court when their attention is called to what is necessary to prove to obtain a conviction in a case of adultery, and what would be necessary to prove on the sole issue of whether or not he had had a single act of intercourse with the woman alleged in the indictment.
In the Coffey case, 116 U.S. 438, cited, the only question decided is, that where the act or fact is the same, then the plea would be good. No one questions that rule, but in this case the act or fact is not the same, for mere proof of the fact that he had carnal intercourse with the girl, when he had sworn he had not, will sustain this conviction; while proof of that fact would not have sustained a conviction of rape, even though the jury believed such fact to be ever so true.
As to the other question, the admissibility of the statement or confession of appellant to or in the presence of Officers Harston, Lowry and Chick while under arrest charged with the offense of rape of Viola Johnson, on the trial for perjury growing out of his testimony on the trial for rape, is one to us of no little difficulty. We have carefully examined the text-books on evidence, and the decisions of our court, and the only one which seems inclined to hold such confession admissible on the trial for perjury is the case of Reinhardt v. State,52 Tex. Crim. 60. In that case Reinhardt made a statement while presumably in charge of an officer, tending to admit himself guilty of the crime of seduction. While with the officer he killed the girl whom he *Page 31 was alleged to have seduced. On a trial for murder of the girl this court held it doubtful whether or not the facts showed the appellant was under arrest, but says, "the testimony was admissible even though he was under arrest," citing the case of Mathis v. State, 39 Tex.Crim. Rep.. In the Reinhardt case, the case for which he was on trial, grew out of the case for which he was under arrest, and the court held that statements made by him about the offense for which he was under arrest were admissible, on the theory that it showed the motive of the appellant for killing the girl.
In the Mathis case, 39 Tex.Crim. Rep., and Davis v. State, 19 Texas Crim. App., 225, the statements were not about the case for which appellant was then under arrest, and we do not doubt the correctness of the opinion of the court in those cases, but we have been led to seriously doubt the correctness of the court's holding in the Reinhardt case, supra, for the statement admitted was a confession about a crime for which he was then under arrest. Article 810 of the Code of Criminal Procedure, as applicable to this case, is, "that the confession shall not be used, if, at the time it was made, the defendant was in jail or in the custody of an officer, unless made in the voluntary statement of accused in writing signed by him, which written statement shall show that he had been warned by the person to whom the same is made that he does not have to make any statement, and if he does do so, that the statement may be used in evidence against him on the trial for the offense concerning which the said confession is therein made."
In this case, there is no contention that the confession is in writing, or that appellant had been warned as required by law that the statement might be used as evidence against him. In the confession or statement, the officers testify that he stated in their presence that he had had carnal intercourse with the girl with her consent. No one contends that this confession was admissible against him on the trial for rape, for which he was then under arrest. On the trial for rape appellant swore that he had never had intercourse with the girl, and the charge for perjury was based on this statement, and the confession the officers testify appellant made to them while under arrest for rape was admitted in evidence to prove that his testimony on the trial for rape was untrue — to prove that he had intercourse with the girl. Our opinion is that the plain letter of the statute renders inadmissible the confession of a defendant aboutthe crime for which he is then under arrest in any case for which he may thereafter be tried, but not statements made by him about matters for which he is not then under arrest about offenses not then committed. With the exception of the Reinhardt case, supra, we think this the clear distinction made in all our decisions. Taylor v. State, 3 Texas Crim. App., 397; O'Connell v. State, 10 Texas Crim. App., 567; Grosse v. State, 11 Texas Crim. App., 364; Neiderluck v. State, 21 Texas Crim. App., 320; Robinson v. State, 55 Tex.Crim. Rep.. In the latter case it was sought to prove statements made by Robinson while under arrest. In the opinion it is said: "The defendant having objected to any of said statements on the ground that defendant was under arrest, *Page 32 the district attorney contended that he had a right to show that the arrest was not for the theft of the horse in question, as bearing on the admissibility of the statement, and of the weight to be given to it, and it was admitted for this reason. No request was made by defendant to limit the testimony in the charge. This testimony was not admissible. In the case of Pate v. State, 46 Tex.Crim. Rep., and Mathis v. State,39 Tex. Crim. 549, 47 S.W. Rep., 464, we held that although appellant was under arrest, statements about transactions that subsequently took place were admissible, but it is not permissible to prove statements about crimes that had theretofore been committed although the party is not under arrest for the particular crime about which the statement is made."
In this case it was sought to prove statements or confessions of appellant about the offense for which he was then under arrest in a subsequent trial, for a different offense growing out of his testimony on the trial of the case for which he was then under arrest. It may be that appellant swore falsely on the trial for rape, but this can not be proven by confessions made about the rape when he was under arrest for rape. After a thorough study of the question, the statute and the decisions bearing thereon, we have arrived at the definite conclusion that the confessions of a defendant about the offense for which he is then under arrest, unless taken in accordance with the provisions of the statute, are inadmissible. That the Code has provided that such confessions are not competent testimony, and such testimony is no more admissible than evidence offered of any other incompetent witness under the law. In the cases of Milner v. State,75 Tex. Crim. 22, 169 S.W. Rep., 899; Wyres v. State,74 Tex. Crim. 28, 166 S.W. Rep., 1150, and Long v. State, 10 Texas Crim. App., 186, we held such testimony inadmissible in behalf of a defendant because the statute said the person making the statement was an incompetent witness at the time he made the statement, and if he is incompetent under the statute, under those cases, such testimony is incompetent also in behalf of the State, by virtue of the statute, unless the confessions come within the exceptions named in the statute.
Having arrived at this conclusion, we have concurred in the opinion granting a rehearing on this ground alone.
Rehearing granted.