An opinion was rendered at a former day of this term affirming this case, and it now comes before us on motion for rehearing. Appellant only calls in question the correctness of the opinion heretofore rendered in two particulars: First, he says that the court erred in permitting the witness Spain to reproduce the testimony of appellant given at a former trial of the case; second, he maintains that Burke and Nicholson, alias Felps, are confessed accomplices, and the record fails to disclose any testimony corroborating the accomplices.
In regard to the first proposition, it is insisted that the decision in Collins v. State, 39 Texas Criminal Reports, 441, does not apply; and in this connection it is urged that Collins was a witness at a former trial, and was also a witness on his own behalf at a subsequent trial, and that his testimony given at a former trial was used to impeach or contradict him. This, appellant says, was admissible, because he was a witness at both trials. Appellant further says "that this is all quite true and sound, when applied, as it was in the Collins case, to the evidence of a testifying defendant, but it has no bearing at all where a defendant does not testify." In reply to this proposition, we are constrained to say that appellant evidently misapprehends the Collins case, and the reason urged by appellant in said case why the testimony of the defendant could not be reproduced. The objection there urged was that a defendant's testimony at a former trial could not be reproduced against him at a subsequent trial, because it was a statement of the defendant made while under arrest, and no warning such as is required by the statute was shown to have been given; and that decision was predicated upon the idea that a warning in such case was not necessary; that when appellant took the stand on his own behalf, though for the time being he might be under arrest, yet he was in the presence of the court; and that his giving the testimony was free and voluntary, — thus placing his statement or confession on the same plane as a confession made out of court when not under arrest, or a statement or confession made under arrest after having been duly warned. And it occurs to us, as was said in that case, that any other rule would place a defendant's testimony, given on his own behalf, under a ban and at a disadvantage. If the rule contended for by appellant be correct, then it would be impossible to prosecute a defendant testifying on his own behalf for perjury, unless he had been duly warned before he gave in his testimony, as his testimony given without any warning could not be reproduced against him in a trial for perjury. While our statute says that the former conviction can not be alluded to at a subsequent trial, this affords no reason why testimony given at a former trial can not be reproduced, and such testimony would not necessarily suggest a former conviction. Nor does the fact that the statute inhibits any reference to the failure of a defendant to testify furnish any reason why testimony given by him at a former trial can not be reproduced, *Page 314 — no more so than an instruction by the court telling the jury, in the terms of the statute, that they will not consider the failure of defendant to testify in the case as a circumstance against him. As stated above, the whole question with reference to the reproduction of a defendant's testimony given at a former trial resolves itself into the proposition as to whether or not this procedure is a violation of the statute with reference to confessions of a defendant made while under arrest; and on that subject we adhere to the opinion heretofore rendered in the Collins case, supra, and followed in this case, — that, when a defendant takes the stand on his own behalf, he does so with full knowledge of his rights in the premises, and on a subsequent trial of the case it is competent for the State to introduce such evidence against him, although he may not take the stand at the subsequent trial.
Appellant, in the able brief filed on rehearing, discusses thoroughly and elaborately the question as to the corroboration of the accomplices by testimony aliunde, and calls the court's attention to several assumed misstatements on the part of the court. Among other things, he urges that the record furnishes no data showing, as the court stated, that Felps' certificate was a locative interest. We have examined the statement of facts in that particular, and find that we were in error in so stating. However, the main fact in connection with said statement was as to the age of the grantor. This would make a difference of only about three years, and we do not consider it material. The main fact to which we called attention was that the grantor, Felps, in 1893 should have been a number of years older than Nicholson, alias Felps, was at that time.
As to the matter of corroboration of the confessed accomplices, we fully discussed that in the original opinion, and cited therein a number of circumstances introduced in evidence tending, in our opinion, to show corroboration. While these facts and circumstances do not show positive knowledge on the part of Preston at the time he uttered the alleged deed that same was forged, yet, in our opinion, they not only were sufficient to put Preston upon notice that the said deed was forged, but the circumstantial evidence showed that he had actual knowledge at the time he passed it that it was forged; and we apprehend it will not be contended by appellant that this guilty knowledge can not be proved by circumstantial testimony. In the view we take of it, the circumstantial testimony is of an overwhelming character, and tends strongly to corroborate the accomplices' evidence. The motion for rehearing is accordingly overruled.
Motion overruled.
DAVIDSON, Presiding Judge, absent. *Page 315