The state has filed a motion for rehearing insisting that we were in error in saying the state had used in evidence against appellant a written statement made by him before the grand jury and therefore the conclusion based upon this assumption is also erroneous. We have again carefully examined the record to ascertain if our statement was based on a misunderstanding of the facts. The indictment against appellant was returned by the grand jury for the May term of court in 1924. He was before that grand jury twice. The first time he did not tell about buying the whiskey from one Jirasek, but frankly says he tried to protect his friend, but that the next day he corrected it and told the grand jury "exactly how it was." For some reason this grand jury did not indict Jirasek. The grand jury for the succeeding January term of court also called appellant before it and interrogated him about buying the whiskey from Jirasek. The statement then made is the one used by the State against appellant on his trial. His defense was that he bought and transported the whiskey for medicinal purposes. On cross-examination the statement was read over to him in the presence of the jury to show it contained no claim that he procured or transported the whiskey for medical use. This was using the statement against him as effectually as though it had been formally introduced by the state. Appellant's complaint is that neither on the trial nor upon the motion for new trial was he permitted to testify that on each occasion before both grand juries he told them much more than is embraced in the last statement, and if permitted to do so it would have shown him entitled to immunity under Article 694 P. C., 1925, which is quoted in our original opinion.
There is nothing in the record to show that appellant was a voluntary witness before the grand jury seeking to forestall *Page 607 the state by making out for himself a case of immunity. On the contrary, it shows he was brought before it by process. If he told the grand jury about the purchase and transportation of the whiskey he could not be prosecuted for the transportation of it under the express provision of the statute referred to. He should have been permitted to give the testimony upon which he proposed to base such defense.
The motion for rehearing is overruled.
Overruled.