In its motion for a rehearing, the state challenges the correctness of our conclusion as expressed in our original opinion wherein we held that the trial court erred in permitting the state, on cross examination of appellant, to inquire of him if he did not come to the county attorney's office and start to make a voluntary confession about the whole transaction. Appellant replied that he did not at that time know that Mr. Ford was the County Attorney; but he did talk to Mr. Ford; that he did not know that Mr. Ford did anything on that day; that he did write something on a typewriter. The state then called Mr. Ford and proved by him the facts set forth in the original opinion.
The state contends, in its motion, that appellant first went into the matter relative to his intention of making a voluntary confession; and, therefore, the state had a legal right to introduce the balance of his statement made to the county attorney. We have again examined the record but fail to find anything in the record which shows that he first introduced evidence of his appearance before the county attorney with the intention of making a voluntary confession. Appellant was under arrest and in custody of an officer, and the mere fact that he declined to make a confession was not admissible against him. See Swisher v. State, 84 S.W. 911; and Ripley v. State, 58 Tex. Cr. *Page 292 R. 489 (126 S.W. 586), where many cases on the subject are cited.
It occurs to us that the state, by the evidence set forth in our original opinion, sought to impress the jury with the fact that since the appellant was taken before the county attorney for the purpose of making a voluntary confession, even though he declined to do so, he was guilty of the offense charged. It is quite obvious that this was highly prejudicial.
Believing that the case was properly disposed of on original submission, the motion for rehearing is overruled.
Opinion approved by the Court.