The adage is as true, as old, that hard cases make bad law. In my judgment the opinion of the majority in this case is a fresh confirmation of the truth of the old saying. The record before us discloses a condition of depravity difficult to believe and impossible to state without burdening our pages with a condition of affairs that, with becoming respect, we can not afford to do. But the question in the case is a thing apart from the character, habits or antecedents of the young girl, the subject *Page 242 of the assault. If the opinion of the court is bad law in this case, it would be equally bad in a case where we would be less reluctant than here to apply the correct rule. The matter of the introduction of the confession copied in the opinion arose in this way: The State introduced L.O. Cox for the purpose of proving the execution of the instrument by appellant, who, under the direction of the court, was permitted to testify and did testify as follows:
"I am county attorney of Erath County. After the defendant had been arrested and placed in jail, I had him brought out to the office of the justice of the peace, in the courthouse, for the purpose of ascertaining whether he wanted an examining trial, or to waive a trial, and for the purpose of fixing his bond, or having the bond fixed for him. He waived an examining trial on the charge and I then warned him officially that he did not have to make any written statement of the matters connected with the offense with which he was charged, and warned him also that if he did make any statement in the matter it could be used in evidence against him, and not for him, on a trial. After this warning I then asked him if he desired to make a statement. He said he did, and then proceeded to make a statement of the matter, which I reduced to writing in his presence, and which I afterwards read over to him in the presence of the justice of the peace and also the sheriff, or perhaps one of the deputy sheriffs. Defendant then signed the statement also in the presence of the justice and sheriff." Thereupon the confession, which is the principal subject of discussion, was offered in evidence and objected to. To insure entire accuracy we copy the precise objections set out in the bill. They are as follows: "To which testimony of the witness Cox, the defendant at the time that the same was offered objected to same on the ground that defendant was under arrest and that what he said and did while under arrest can not be used against him unless in writing, and the statutory requisites complied with, and that parol evidence is not admissible to supply any defect or omission in said written statement. And that the statute requires the confession of a defendant under arrest to be in writing, and that the written statement must show that the defendant was warned by the person to whom the same is made, and such an omission can not be supplied by parol testimony, and that the said testimony is irrelevant and immaterial and prejudicial to the rights of the defendant before the jury." The bill also recites and the court certifies that at the time appellant made said statement, that he was under arrest and that such statement bore no date.
Article 790 of our Code of Criminal Procedure, as amended by the Acts of the Thirtieth Legislature, p. 219, is as follows: "The confession shall not be used if at the time it was made the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of the *Page 243 accused, taken before an examining court in accordance with law, or be made in writing and signed by him, which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all; second, that any statement made may be used in evidence against him on trial for the offense concerning which the confession is therein made."
The question is, whether or not, fairly construed, in the light of the testimony, admissible in aid of the written statement, same conforms to and is brought fairly within the terms of the statute. In order to determine this question, it is well to consider the purposes and objects of the statute. Before this Act was passed, admissions or confessions by parol were frequent where a preliminary examination disclosed that the warning required by law had been given. It was no doubt believed by the Legislature that this rule was attended with frequent abuses, and that many times unsuspecting and innocent persons were entrapped into statements unadvisedly, and without knowledge of their rights under the law, and without thought that such statements would confront them on their trial. It was no doubt believed that by corrupt or overzealous officers, not infrequently by importunity, coercion, craft and doubtless sometimes by the application of the third degree, as that term is understood in police circles, weak, untrained and often innocent persons were led into statements which would not have been made under fair conditions or with knowledge of the fearful consequences thereof, and that sometimes, too, warnings were claimed to have been given when in fact they were either not given at all or were so guardedly given or in such vague and general language as not really to apprise persons under arrest of their import and effect. It was, therefore, no doubt designed by the Legislature that hereafter, with a view of discouraging practices and abuses which had crept into the administration of justice, that a new rule would be instituted, which would be for the better protection of defendants, but which would at the same time be available and of service to the Commonwealth in the prosecution of offenses. Therefore, doubtless based on these and other reasons, they enacted this law. When construed in its entirety it does this and no more than this. It provides before such confession can be admitted in evidence that it shall recite and contain intrinsic evidence of the legal rights of the person charged with the offense, first, that he does not have to make any statement at all; in other words, that his failure to do so was not a circumstance against him; that the law protected his silence; that he might stand upon his rights and decline to make any statement whatever. This covers the first provision "that he does not have to make any statement at all." The second provision is based on this reason: It is designed to inform him that any statement that he does make may be used in evidence against him on his trial for the offense with *Page 244 which he is charged. In other words, that provision is intended to advise and put him upon notice that the statement he makes is not to secure immunity, not for the private information of the person to whom made, not to secure him against prosecution, but to advise him distinctly that it may be used against him on the trial, and will or may appear in judgment against him. The reason for requiring the name of the person giving the warning to be stated therein is not so obvious. I think, however, that the underlying reason inducing and requiring such name to be stated was with a view of furnishing ready and certain information to persons charged with crime of the name of the person by whom the warning was claimed to have been given. In the absence of such person being named, litigants would be wholly at a loss to know on whose testimony the State would rely to establish this important fact, and in the absence of such knowledge surprises would not only be frequent, but sometimes would or might place an innocent defendant at such disadvantage as to make it impossible for him to meet the proof of the State. If, however, the confession be in writing and the name of the person is therein stated, it will always be practicable, on due application, for the defendant to secure an inspection of such instrument, and know in advance of the trial the name of the person by whom the warning was claimed to have been given, and, therefore, be able on trial to meet the State's proof in respect to such warning. It was never designed, however, I think, by the Legislature that any peculiar form or formula should be held necessary to convey to a defendant this information, and while it is always preferable to use the language of a statute when drawing any instrument under it, it would be an unsafe rule to hold that the mere absence of any particular word used in the statute where other language is substituted therefor of the same import would of necessity invalidate same. It should always be remembered, too, that it must have been contemplated by the law-makers and understood by them, that in the administration of the law many persons, who were not lawyers and were not skilled in or conversant with the technical rules of the law, would be employed in the detection of crime, and would be concerned in attesting confessions, and it is hardly probable that the Legislature could have intended that this law, in its practical administration, be administered by trained lawyers conversant with the niceties of expression, or the technicalities of men trained to the legal profession, but that the law would be administered and construed in a plain, everyday, straightforward fashion. Whether the statute should be strictly construed, as Judge Brooks says in the case of Young v. State, 54 Tex.Crim. Rep., supra, I am not disposed to quarrel. After all, whether strictly or liberally construed, the supreme test always is to give it a fair and reasonable construction so as to arrive at the true intent and purpose of the law. My opinion is that the statement here offered comes within *Page 245 the true intent and meaning of the law, and to hold otherwise is, with all due respect to the majority, sheer literalism gone to seed. Nor, as I believe, do the cases cited sustain the opinion of the majority. I wrote the opinion in the case of Robertson v. State, 54 Tex.Crim. Rep.. It was the first opinion rendered by this court on this statute, so far as I now recall. In that case, as an inspection of the opinion will show, the confession offered in evidence contained no recital at all either in terms or substance that Robertson had been warned either that he did not have to make any statement at all, or that his statement might be used in evidence against him. These recitals were contained, however, in the certificate of a notary public, and we held in the Robertson case that the instrument itself must contain the statutory essentials, and their absence from the confession was not cured by their appearance in the acknowledgment to same. We there say: "The fact that such statement is contained in the certificate of the notary public does not meet the requirements in the statute. It can no more supply the recital of such fact in the statement than could an acknowledgment supply or take the place of a substantial matter required by law to be contained, or included in a deed or other instrument of writing." That was the only point decided so far as it involves this question in Robertson v. State, supra.
Nor, as I believe, is the conclusion of the majority supported by the case of Young v. State, 54 Tex.Crim. Rep.. Judge Brooks wrote the opinion of the court in that case, and with a perfect understanding of its holdings I agreed to it. Among the conspicuous traits of that great judge was directness and slight respect for the less "weightier matters of the law." The confession considered in that case is as follows: "Sam Young, after having been informed that he can not be compelled to make any statement whatever, and that if he does make any statement, same will be used as evidence in the case against him for murdering John Aikin, and also in the case for shooting his wife, freely and voluntarily makes the following statement:" It will be noticed, therefore, that in this statement there is the name ofno person mentioned in it at all as having given him the warning required by law. We held, therefore, in the absence of any sort of designation of the person giving the warning, and in thecomplete absence of any name of any person in the statement by whom the warning was given, that it did not conform to and comply with the statute. That is the only question decided in that case. What are the facts here? The statement recites: "I, Sam Jenkins, have been duly warned by the county attorney, L.O. Cox, that any statement that I might make could be used in evidence against me on a trial, and not for me, and that I do not have to make any statement, make the following statement:" Now, of course, in practically every case it would be essential to place some witness on the stand to prove up the execution of any *Page 246 statement to be offered. This is a condition precedent that would be necessary in every case. Now, then, what have we? We have a reputable man placed on the witness stand who identifies the instrument offered, vouches for its integrity and proves its execution. In connection with his testimony, the instrument is offered. The instrument so offered recites that he was warned by the person producing the instrument, identifying the instrument, and proving the execution of the instrument. The law says: "Which written statement shall show that he has been warned by the person to whom the same is made." To whom was this confession made? To L.O. Cox. By whom was he warned? He was warned by L.O. Cox. If the contention of the majority is correct, and in support of this provision of the law, we would say, "I, Sam Jenkins, having been duly warned by the county attorney, L.O. Cox, he being the person to whom this statement is made," etc., but the law does not require the confession to state in terms that the person named therein is the person by whom the warning has been given, but is only required to name in the statement that he had been warned by the person to whom such confession is made and does not require the further statement that he is the person. It would be as useless if a great artist should paint a picture of full, ripe grapes, blushing purple in the sunlight, and so real that birds would stop in their flight to peck at them, could not have his work considered or hung in an art gallary unless he should painfully and laboriously trace under it, "This is a picture of grapes."
Some suggestion further was made in the argument that the statement was deficient in that it did not in terms recite that same might be used against appellant on the trial of this particular case. We think this objection is exceedingly technical, and in its last analysis unsound. That there might be confessions so complicated and involving so many issues and questions as to make this objection is possible, but we are dealing here with this particular case, and, as a court of last resort, are presumed to be dealing with realities and not basing our conclusion upon artificial and technical rules, resting on no rational principle. The confession bears intrinsic evidence of the fact that it relates to no other transaction except the one made the basis of this charge, and it is inconceivable, in view of the character of the confession, that it could be assumed by anyone, that the warning that it could be used against him on his trial, could have referred to any other trial than the one involving this transaction. In this case there was no suspicion thrown on the entire and absolute good faith of the officer taking the confession. Its execution stands undenied; there is no suspicion that it is otherwise than as read, understood and signed by appellant, nor is there any other fact that in anywise impeaches its truthfulness and integrity. In view of these facts, and for the reasons here given, I am unwilling to lend my endorsement to a rule which I believe, if followed, *Page 247 and if it shall form the precedent for such highly technical, if not indeed strange and unusual, construction, would utterly emasculate the whole confession law in this State, and I have deemed the matter of such importance as to write out my views at this length.