The offense is murder; the punishment confinement in the penitentiary for twenty-five years.
The state relied upon circumstantial evidence. The body of Herman Walden was found in a pasture near an oil camp. There were shotgun wounds in the breast. Near the body were some *Page 18 empty 12-gauge shotgun shells. Appellant was the last person seen with deceased. They had been together in appellant's car on the road near the place where the body was found. Appellant was armed with a shotgun at the time. The state proved that appellant had threatened to kill deceased. The foregoing statement has been made without any attempt to set out all of the circumstances relied upon by the state.
Appellant denied that he killed deceased. He testified that he last saw deceased on the occasion when they were together in his (appellant's) car on the road near the point where the body of deceased was found; that deceased got out of his car and walked away; that after driving a short distance the car stuck in the mud; that he (appellant) left the car and walked to his home, leaving his shotgun in the car.
Appellant had made no written confession under the terms of Article 727, C. C. P. On cross-examination, the district attorney asked appellant if he had not stated to the jailer, while he (appellant) was under arrest and in jail, in substance, that he was crazy on liquor when he was with deceased in his automobile and did not know what occurred. Further he was asked if he did not make the statement in the same connection that the last time he saw deceased he (appellant) put him out of his automobile at a rooming house in the town of Hilltop. Appellant denied that he made such statements. Whereupon a witness for the state testified that he was in the jail and heard appellant make the statements inquired about. Proper and timely objections were interposed by appellant. Proof of a confession, or of statements or acts amounting to a confession, made while the accused is in custody or confinement, and which would not be admissible as original evidence is not admissible to impeach him. Branch's Annotated Penal Code of Texas, section 74, and authorities cited. The statute inhibits the use against one accused of crime of a confession made while under arrest, unless it comes within some of the exceptions embodied in the statute. Art. 727, C. C. P. In Hext v. State, 282 S.W. 242, Presiding Judge Morrow used language as follows:
"The purpose and effect of the statute is to prevent the prosecution from using, against the accused, by the testimony of the officer having him under arrest, of a verbal statement made by the accused which the state seeks to use in proving the guilt of the accused."
Giving application here to the announcement of the decisions, we are constrained to hold that reversible error is presented. *Page 19
We are of the opinion that paragraph five of the court's charge is subject to the objection urged by appellant, that is, the trial court assumed in said paragraph that appellant killed deceased. This was a closely controverted issue.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.