The state has filed a motion for rehearing presenting the matters upon which the reversal was predicated in a different light than occurred to us at the time our original opinion was considered.
Appellant objected to the introduction of his written confession on the ground that it was not voluntary, but had been secured by inducements held out to him by the district attorney who took the confession. Appellant sought to have the jury recommend a suspended sentence. The state resisted it. Mr. Henry Bradford, an uncle of appellant, was called by him as a witness. He was present with appellant when the confession was taken. Among other things, he testified on direct examination: "* * * Yes, he (referring to Mr. Dean, the district attorney) said something about a suspended sentence; Mr. Dean *Page 45 said, if the grand jury bills you, I might have to try you, but I would recommend a suspended sentence if I do. It was my impression that Mr. Dean represented that a suspended sentence would be the worst he (appellant) would get."
Upon cross-examination by Mr. Dean, the district attorney, the witness said: "* * * you told him that you were after Eph Barnes, and you told him that you wanted him to testify against Eph Barnes, and he agreed to do it, and agreed to tell the whole truth. You asked him who all was in that, and he told you it was him and Eph Barnes. You also told him at that time that Eph Barnes was the man you wanted to send to the penitentiary, and that you wanted to use his (defendant's) testimony, and he agreed to testify, and you told him that if he would come in and do what he said and testify against Eph Barnes, so the State could send Barnes to the pen, you would see that he got a suspended sentence; that is exactly what you said. Yes, you also told him that you could not make him any promise about signing the confession, but you would promise that if he would testify for the State, that you would grant him immunity, and he signed the statement, and told you all that you wrote down."
On redirect examination he testified: "You ask me to state whether or not Mr. Dean, in telling the defendant that if he would sign the statement, put any other qualification in there besides the fact that if he would sign that statement he would stay with him — no, nothing only what I have mentioned. He told him that if he would sign that statement and testify against Barnes, he would grant him immunity, and would see that he got a suspended sentence if he was tried. No, he did not tell him he would have to testify against Barnes before he would stay with him."
On recross-examination, he testified: "Yes, you discussed the fact that Barnes was the man you wanted, and that Elbert Bradford was going to testify against him, that was understood and agreed to."
From the testimony quoted it is clear that the jury might have found that the district attorney had promised appellant that if he would testify against Barnes the district attorney would recommend a suspended sentence for appellant. The jury knew the district attorney was not recommending a suspended sentence, but was resisting it. They could not know in the absence of testimony upon the point that appellant had failed to carry out his part of the agreement. If the state's evidence had been rejected to the effect that upon the trial of Barnes the district attorney called appellant as a witness and he refused *Page 46 to testify, the state would have been left in the light of having through its representative acted fraudulently, or at least of having made an agreement that it did not carry out. In fairness to the state, under the peculiar circumstances of this case, it was properly permitted to show why it was not carrying out an agreement which the testimony tended to show was made.
It has been said by this court that if the state makes a contract with a defendant for immunity from prosecution in consideration of his turning "State's evidence" it is due the dignity of the state that the contract be carried out in good faith. Bowden v. State, 1 Texas App., 145, Branch's Ann. Tex. P. C., sec. 638. On the other hand, it has also been held that an agreement to turn state's evidence will not bar a prosecution where the agreement is violated by a refusal to testify. Neeley v. State, 27 Texas App., 324. Many other authorities are cited in Branch's Ann. Tex. P. C., sec. 638. While in the present case no plea of immunity against prosecution was interposed, there was placed before the jury evidence tending to show an agreement on the part of the state's representative to recommend a suspended sentence — which is close akin to immunity — and the state should not have been denied the right to show that if any such promise was made it was upon a condition which appellant failed to carry out.
"Whatever material facts are introduced that tend to affect an issue in the case, the other side has a right to deny, contradict or explain that testimony, showing its falsity, or breaking its force and effect in any legitimate way."
Branch's Ann. Tex. P. C., sec. 97, p. 62, under which many authorities are cited, among them being Russell v. State, 11 Texas App., 288, which discusses the general principle announced. It will scarcely be questioned that evidence put in the record by appellant to the effect that the district attorney had agreed to recommend a suspended sentence would tend to affect that issue before the jury, unless the failure to carry out the agreement was explained.
Having reached the conclusion that we were in error originally in predicating a reversal upon the complaint in bill of exception number eleven, and the argument with reference to the same matter, the state's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
Affirmed. *Page 47
ON DEFENDANT'S MOTION FOR REHEARING.