We understand from the record that Joe Miller, alias Jo-Joe, and appellant were charged by separate indictment with murder of the same person. Miller was tried and convicted and the death penalty assessed against him. He was not executed but died in jail, and during his illness, while he. according to his statement, was in a dying condition, he stated to Mrs. Peel and Rev. Hawkins that he desired to make a confession before he died, that Joe Walsh was innocent of the crime; that Walsh was present when the crime was committed but had not previous knowledge of the intention to commit it, and took no part in it. Appellant sought, through the testimony of Mrs. Peel and Hawkins, to prove that the statements were made by Miller to them.
In a note in 131 Amer. State Reports, p. 778, it is said: "The general rule laid down by the courts is, that a confession or admission on the part of a third person that he committed the crime *Page 216 which the defendant is charged with having committed is mere hearsay and not admissible in evidence in favor of the defendant where it does not constitute a part of the res gestae." Accompanying this statement is the citation of numerous authorities, including the case of Bowen v. State, 3 Texas Crim. App., 617; Holt v. State, 9 Texas Crim. App., 571; Horton v. State, 24 S.W. Rep., 28; Hodge v. State, 64 S.W. Rep., 242. From the syllabus in the Bowen case we quote. "That a third person had voluntarily acknowledged that he committed the crime for which the accused was on trial was not compentent evidence for the accused to elicit from persons who heard the acknowledgment made." In Wharton's Crim. Ev., vol. 2, p. 476, it is said: "Allowing proof of innocence by the self-assumed blame of one beyond the reach of the law would soon disorganize criminal procedure, and to admit declarations as affirmative proof of guilt of some one other than the declarant would be subversive of constitutional principles."
It is settled that one accused of crime may show that another person committed the offense with which he is charged, where the guilt of such other person would be consistent with the innocence of the accused. But this proof must be by competent evidence. Dubose v. State, 10 Texas Crim. App., 230. In the case of Blocker v. State, 55 Tex.Crim. Rep., this court qualified the general rule excluding the admission of the third party as hearsay, and holding that in a case where the prosecution was supported by circumstantial evidence alone that in connection with circumstances tending to show that another and not the accused had motive and opportunity to commit the offense, the declaration of such third person that he had committed it should be received as one of the circumstance in favor of the accused on trial. The appellant in that case offered circumstances throwing suspicion upon one Aaron Massey, — in connection with his declaration that he killed the deceased The court said: "We are of opinion this testimony was admissible under the circumstances stated. The motive was as strong on the part of Massey as on the part of appellant. It would be a self-evident proposition that if Aaron Massey killed the deceased, appellant not bing present or aiding in any manner in the homicide, that appellant would not be guilty, and as we understand the record, there is nothing in the record indicating that the appellant and Aaron Massey were acting together in the homicide, if either of them killed the deceased." The reasons controlling the court in Blocker's case, in departing from the general rule with reference to the reception of declarations of third parties, do not obtain in the case, as we construe the record. Miller's admission that he killed the deceased in the instant case, if he had made said admission, would not have been inconsistent with the appellant's guilt. The appellant was admittedly present at the time the homicide took place, and the prosecution against him was upon the theory that he *Page 217 acted with Miller and another companion as principal. The State, it is true, relied upon circumstances to establish the fact that he was a participant in the homicide, though his presence was established by direct testimony. His presence being thus established, if Miller had made a specific declaration that he killed the deceased, it would not necessarily have exculpated the appellant. But as disclosed in the record, Miller made no such specific declaration, but the proof that was offered went to show that Miller had declared in the presence of the witnesses mentioned that appellant took no part in the killing of deceased. Similar testimony to that received in Blocker's case was held admissible in Pace v. State, 61 Tex.Crim. Rep., and we assume that it was received upon the same grounds, though the facts are not fully set out. Accepting the Blocker case as establishing an exception to the general rule of evidence, by virtue of which exception one accused of murder, and against whom there is circumstantial evidence only, may use as a rebutting circumstance the declaration of a third party that he killed the deceased, where the killing of the deceased by the third party would be inconsistent with the guilt of the accused on trial or consistent with his innocense, we do not think that the evidence offered in the instant case was within this rule. A phase of the law not arising in the Blocker case and not discussed in the Pace case, is presented in the fact that Miller had been indicted for the same offense with which the appellant was charged, and at the time he made the declaration which appellant offered to reproduce upon the trial, he was under sentence of death upon conviction of participation in the same homicide with which the accused was charged. Miller being charged by indictment with the same offense, was by virtue of the express provisions of article 791 of our C.C.P. not a competent witness for appellant and was disqualified further under article 788 by his conviction of a felony. If, therefore, appellant had offered him as a witness to prove that while he, appellant, was present at the time the homicide took place, that no part was taken in it by him, Miller's testimony would have been excluded on objection upon either or both of the grounds stated. If the contention of appellant on the phase of the case we are discussing is sound, it would illustrate what seems to the writer an anomalous condition of the rules of evidence in this State, because while under express statutes he could not put Miller on the witness stand and prove by him under oath any fact exculpating appellant, he could prove an exculpating declaration made by Miller, not under oath, and out of court, to a third party, by introducing the third party as a witness and making proof that Miller had made the statements to him.
I think the State's motion for rehearing should be overruled and the case reversed and remanded for another trial. I cannot see my way clear, however, to accede to the correctness of the view that the declarations of Miller would be admissible in evidence.
Overruled. *Page 218