Consideration has been given to the motion for rehearing and to the oral argument of State's counsel in support of it.
The conclusion stated in the original opinion is an application of what we understand to be the general rule of evidence, namely, that it is primarily the office of the judge to determine the admissibility of evidence. On the subject, a text-writer uses this language:
"Necessity is a part of the law of the land, supreme within its sphere. There are facts upon which, if a court does not pass, it cannot discharge its functions; therefore it decides them." (Bishop's New Crim. Proc., 2nd Ed., Vol. 2, Sec. 989.)
From the same author we quote further:
"The judge, — within a doctrine already explained (Sec. 898, supra), and as a preliminary without which no confession can go to the jury, determines, on testimony laid before him, both for and *Page 601 against, whether or not to admit the particular one; the burden being on the prosecuting power that tenders the confession. His decision covers, besides the law, the fact, as to which it is not ordinarily to be disturbed on review; and the jury can pass merely on the effect of the confession in evidence. This is the doctrine of reason, supported by more of the cases, but we have a few, which seem to accord something more to the jury, or place on the defendant the burden of proving the inadmissibility." (Bishop's New Crim. Proc., 2nd Ed., Vol. 2, Sec. 1220.)
There may be departures from this rule, but they are exceptions in their nature and do not become the rule. We understand that where a verbal confession on its face is voluntary and not offensive to the statute upon the subject is offered in evidence, it is incumbent upon the accused to call its admissibility in question by the introduction of evidence. This principle applies when the State offers in evidence a declaration, criminative in its nature, which the accused contends should not be received because he was under arrest at the time it was made. Williams v. State, 19 Texas Crim. App., 279. This preliminary inquiry may and should, upon request of the accused be made in the absence of the jury. If, after hearing the inquiry, the judge is of the opinion that the proffered evidence is admissible, the evidence on the preliminary hearing may be embraced in a bill of exceptions so that the reviewing court may decide with the facts before it whether the ruling of the trial judge was correct. If the evidence touching the arrest is conflicting or its truth called in question, the court, upon the request of the accused, may, by an appropriate instruction, call upon the jury to determine whether at the time the declaration was made the accused was under arrest. It is possible that instances might arise in which, on such request, the court should submit the matter to the jury. We are not to be understood as holding that under the evidence adduced in the trial the confession was not admissible. Our opinion in this and on the original hearing go no further than to declare that the appellant was entitled to the decision of the trial judge on the admissibility of the confession, and that the trial court was not warranted in submitting to the jury the confession, together with the evidence of arrest and calling on the jury to decide the matter as was done against the protest of the appellant.
The motion is overruled.
Overruled. *Page 602