The appellant raises but one question in his motion for rehearing, stating that this court, as he believed, had inadvertently in the decision of the case originally, overlooked the question he had raised. His contention and point on the question as to the admissibility of what is designated the statement made by appellant before the justice of the peace in the examining trial, is as follows:
"The statute requires a warning of three distinct parts: (1) That the defendant has a right to make a statement; (2) That he can not be compelled to make any statement whatever, and (3) That if he does make such statement, it may be used in evidence against him. (Art. 282, C.C.P.) The magistrate gave the defendant the first part of the warning and the third part, but he ignored the second part as completely as if it were not in the statute."
We regret to have to say that the opinion as handed down, does not accurately express what was intended to be the opinion of this court on this point. This is due to the writer alone. It is now due to the appellant, the court and the writer that the matter be explained so as to express the opinion and holding of the court correctly.
In the preparation of the opinion for the court by the writer, it was prepared and the admissibility of the evidence discussed alone under the idea that the evidence complained of was admissible, even as a statement under the examining trial statute, as cited, regardless of whether it was admissible as theevidence of the appellant on the examining trial or not. In the original preparation of the opinion, in place of this, as it appears therein, "the accused can take the stand and testify not only on the final trial, but on any examining trial, and when he does so, such testimony on any subsequent trial, can be introduced against him, even though he does not then again testify." The original opinion contained this:
"In the case of Salas v. State, 31 Tex.Crim. Rep., on an examining trial before the justice of the peace, the appellant was shown to have made this statement, which was reduced to writing by the magistrate: `My name is Pedro Salas, and live on the ranch of De Leon, in Nueces County. Voluntarily I state that I am guilty of the charge of burglary on the 4th of July, in the store house of George Hobbs, in the town of Collins.' `This was signed and sworn to by him.'
"The appellant objected to the introduction of this statement, but the court overruled the objections, and it was introduced in evidence. Judge Hurt, for this court, in commenting thereon, said this: `Let us concede that appellant should not have been sworn, and concede that his statement is not properly authenticated by the justice. Still, he was cautioned that it might be used against him, and he, under *Page 134 these facts, voluntarily made and signed it. Suppose he had written a letter containing the statement under discussion. Would not the letter have been evidence against him? Being cautioned as the law directs, the fact that he was in arrest does not affect the question; for with the caution, his statement would be precisely the same as if he was not under arrest. We are of opinion the statement was properly admitted in evidence.' See also Grimsinger v. State, 44 Tex.Crim. Rep.; Miller v. State, 37 Tex.Crim. Rep.; Briscoe v. State, 37 Tex. Crim. 464; Kirby v. State, 23 Texas Crim. App., 13; Dill v. State, 35 Tex.Crim. Rep.; Shaw v. State, 32 Tex. Crim. 155.
"In the cases of Alstan v. State, 41 Tex. 39, and Guy v. State, 9 Texas Crim. App., 161, it was held that if the statement taken on the examining trial was not properly authenticated, or if defective for any irregularity, it might be proved by parol and the testimony introduced," which is now made a part of the original opinion, as the writer's views.
Upon final consultation, before the original opinion was handed down, the whole court was of the opinion, and still is, that what is called the "statement" was in fact the evidence of the appellant given by him on the examining trial and was admissible as his testimony, without deciding whether it was admissible as a "statement" under articles 282 and 283 of the Code of Criminal Procedure, or not. If it did not occur to the writer at the time that the balance of the original opinion on that point would be left in the condition it was, hence he did not, as he should, have rewritten the opinion on that point.
The whole court, as stated above, is of the opinion that the evidence of the appellant given before the justice of the peace on the examining trial was clearly admissible on this trial as his testimony given on the examining trial. The writer is of the opinion that it was also admissible as a "statement" under said articles of the Code of Criminal Procedure, though the other two members of the court express no opinion on that point as they deem it unnecessary. The writer, being of the opinion that under the whole circumstances as detailed by the testimony of the justice of the peace, not only the first and third grounds of the appellant's contention, shown above, was complied with, but the second thereof in substance also was complied with.
The motion for rehearing will, therefore, be overruled.
Overruled. *Page 135