Grimsinger v. State

Appellant's motion for rehearing is based upon two propositions: (1) That the court erred in admitting the confession of appellant made before the grand jury, through the witness Cook; (2) that the court erred in not instructing the jury in substance, that appellant was not a principal. The latter ground we will not discuss, as it is fully disposed of in the original opinion.

Appellant's third bill of exceptions brings in review the manner in which the confession of appellant was obtained through the mouth of the witness Cook. In order that there may be no misconception of the facts, we state the record rather at length, as it pertains to the ground of objection, the manner of making it, and the judge's explanation appended to the bill. When Cook was offered as a witness for the State, preliminary matters in regard to predicate were suggested by appellant's counsel, and the jury were withdrawn from the courtroom. While the jury was thus retired, a great mass of testimony, covering sixty pages of the transcript, as shown by the third bill, was introduced in regard to the predicate, as the basis for the introduction of the said confession. This evidence shows that the killing occurred in the evening. The following morning, about 9 o'clock, while the officers were *Page 24 investigating the homicide, they reached the conclusion that appellant was cognizant of the facts connected with the homicide, and perhaps criminally connected with it; so they took her in charge. Some time during the morning she was placed in jail in a room or cell by herself. The district attorney instructed the jailor to prevent any one communicating with her, and his instructions were obeyed. She was carried before the grand jury about 4 o'clock that evening as a witness. About the time she left the jail, or just preceding that time, an attorney called at the jail and asked to see appellant, stating that he was her attorney, This was not known to appellant at the time, nor had she sent for an attorney. Under the instruction given by the district attorney, this interview was refused. The attorney called upon the district judge in regard to the matter, and, while they were discussing the matter, the district attorney communicated with the district judge over the phone to the effect that he desired to be present before anything was done with reference to appellant, and the attorney desiring to interview her. About the time he reached the courtroom where the district judge and attorney were, the bailiff of the grand jury passed by with appellant, en route to the grand jury room; and the district judge remarked that she is now going to the grand jury room, and you can see her after she returns. When carried before the grand jury, she was fully warned and cautioned as required by the statute, and made quite a detailed statement in regard to the homicide and her connection with it, as well as that of her coconspirator, Juan Rocha. About the time she completed her statement, as testified by Cook, she began to make contradictory statements; and one or more of the grand jurors remarked that she must tell the truth if she desired the grand jury to be light on her. Whereupon she made further statements in regard to the matter and at the conclusion of her statement, as she was leaving the grand jury room, remarked that she hoped the grand jury would be light on her. This is a sufficient statement of the predicate, which covers over sixty pages of the transcript. When this was finished, the court took a recess until 2 o'clock. Upon its reconvening, the bill recites: "Appellant's counsel objected to permitting the witness Cook to testify to the statements or confessions of defendant made to or before the grand jury, for the following reasons, to wit: (1) Because her statement or confession was testimony given before a grand jury, and its admission in evidence violates the law in reference to divulging testimony given before a grand jury. (2) Because, at the time of the purported statement or confession or testimony of defendant, she was under arrest, and it is not shown that said statement or confession or testimony was voluntarily and freely given. (3) Because it appears from the testimony that defendant was under arrest, and that the confession or statement was obtained from her by promises or hope held out to her by Judge Adams, the justice of the peace, and by one of the grand jurors. (4) Because the testimony of this defendant before the grand jury was reduced to writing by Edwin Chamberlain, the clerk or secretary of the *Page 25 grand jury, and this written evidence of her statement was the best evidence of what she stated before the grand jury." "Whereupon the jury were brought back into court and the said witness Fred Cook placed upon the stand, and, over the aforesaid objections of defendant, permitted to testify," etc. Then follows the testimony of the witness Cook. It is unnecessary to place the testimony of Cook in the opinion. The substance of it was a repetition before the jury of the incriminating statements made by appellant before the grand jury. This bill is qualified by the court as follows: "After the preliminary examination before the court in the absence of the jury of the witness Cook, and other witnesses, as shown in the first part of this bill, the court ruled that the statement made by defendant in the grand jury room up to the time that she was told that she would have to tell the truth, that the grand jury could only help her if she told the truth, and after said statement was made to her, her statements would not be admitted, and that nothing the witness could not distinctly separate and make certain as being stated before that time would be admitted, and that the same rule would apply to all witnesses, and that unless they could so separate said statement as to make certain of excluding all statements made by defendant after said statement to her, they would not be allowed to testify at all. After this, the witness Cook testified on direct and cross-examination before the jury as shown herein, and no further objection whatever was made to his testimony or any part of it. After which the defendant placed upon the stand Edwin Chamberlain, one of the said grand jurors, who testified that he had tried to write down the substance of defendant's statement before the grand jury; that it was not complete, and would need some explanation. He was then allowed, over the objection of the State, to read said written statement to the jury and supply missing words, and otherwise explain by adding to and explaining the language used by him from his memory of what occurred in the grand jury room, as shown in the statement of facts." As a preliminary statement, the bill of exceptions and the qualifications of the judge show unequivocally that only the testimony of Cook was introduced before the jury, and no statement after the alleged inducement was held out to her by the grand jury was introduced or admitted by the court in evidence.

The rule of practice is settled without conflict of authority that the qualification or explanation of the judge appended to bill of exceptions will control the recitals in the bill so far as such explanation modifies such recitals; and where counsel accepts a bill with the qualification of the judge indorsed thereon, and files the same, he estops himself from claiming it to be other than as the qualification makes it. White's Ann. Code Crim. Proc., sec. 861.

Now, with reference to the fourth ground of exception, that the confession of appellant reduced to writing by Chamberlain was the best evidence of what she stated before the grand jury, we would simply say that the court's qualification of the bill of exceptions states that the defendant placed Chamberlain (secretary of the grand jury) upon the *Page 26 stand, who testified that he tried to write down the substance of appellant's statement before the grand jury, and that it was not completed and needed some explanation, and over the State's objection permitted said written statement to go to the jury, and Chamberlain supplied the missing words, and otherwise explained it by adding to and explaining the language used by him, from his memory of what occurred in the grand jury room, as shown in the statement of facts. Certainly appellant will not be heard to complain that Chamberlain's testimony went before the jury at her instance, and over the State's objection. The court had sustained her objection to this testimony, and it would have been excluded altogether but for her act introducing it.

In regard to the first ground of objection, that the admission of the confession of appellant made before the grand jury violates the statute with reference to the oath preventing the divulgence of evidence given before that body, we would state that in an unbroken line of decisions from Clanton's case, 13 Texas Criminal Appeals, 139, to the present time, it has been uniformly held that confessions or statements of an accused or witness given before the grand jury can be used for the purpose of impeachment. Gutgesell's case, 43 Southwestern Reporter, 1016, which apparently excludes statements before the grand jury as original testimony, recognizes the rule that it can be introduced for the purpose of impeachment. If Gutgesell's case is correct upon this, then it is so in the face of the statutory oath of secrecy taken by the witness before the grand jury. It is as much a violation of the oath of secrecy to use this character of testimony for impeachment as it is to use it as original testimony. There is no exception in the statute in favor of impeaching testimony. So far as we are aware, except in Ruby's case, 9 Texas Criminal Appeals, 353, and Gutgesell's case, it has been the uniform rule in this State to admit the confessions of a defendant made before the grand jury, provided he had been given the statutory warning — the question of inducement aside. For collation of authorities bearing on this question see White's Ann. Code Crim. Proc., secs. 307, 116, subdiv. 7; particularly see Paris v. State, 35 Tex.Crim. Rep.; Thomas v. State,35 Tex. Crim. 180; Gardner v. State, 28 S.W. Rep., 470. In the Paris case, Judge Henderson, delivering the opinion of the court, said: "He also objected to the testimony of one Ripley Harwood, a member of the grand jury, as to the statements of appellant made before the grand jury in the investigation of this case, claiming that same was not freely and voluntarily made, but that same was still affected by the promise of said Cornwell, as evidenced by the fact that, before he made the said statement before the grand jury, he asked them for a written agreement that he would not be prosecuted for the murder of deceased. The court overruled the objections of defendant, and allowed the testimony. We have examined the record in this case, and this action of the court in admitting the testimony we see no error. The evidence shows that, whatever may have been the suggestions made *Page 27 to the defendant by Cornwell, before he made any statement to Cabell he was rewarned by that officer; and, as to the statements made by defendant before the grand jury, he asked to be brought before the grand jury of his own accord, and, while he insisted that the grand jury should make an agreement with him to protect him against prosecution, they expressly told him they had no power in the premises. This decision recognizes very clearly that the confessions of the defendant are admissible, even when made before the grand jury, he being properly warned." In Thomas' case, supra, Judge Hurt uses this language: "A full confession of guilt with the particulars of the crime was made before the grand jury voluntarily, and after being cautioned. This confession was introduced in evidence against defendant over his objection, the objection being that you could not admit the confessions because they were made before the grand jury. It is settled in this State that while such evidence is not properly admissible for all purposes, nor in reference to all proceedings of the grand jury, it is competent when in the judgment of the court it is material to the due administration of justice. The case of Ruby v. State, 9 Texas Criminal Appeals, 353, was overruled in Clanton's case, 13 Texas Criminal Appeals, 139; Thompson v. State, 19 Texas Criminal Appeals, 594; Scott v. State, 23 Texas Criminal Appeals, 522."

It is conceded that this appellant at the time of this confession before the grand jury, was under arrest and suspected of the crime of which she was subsequently indicted and tried. It was not known at the time that she was guilty. The killing had just occurred the night before and the grand jury and the officers were making the necessary investigation to locate the criminality. It is contended by appellant that, where a defendant is carried before inquisitorial bodies, such as examining courts and grand juries and is suspected of crime, it is not proper or legal to put him under oath in detailing his testimony. Our statute in reference to examining courts provides that the examining magistrate shall notify defendant it is his privilege to make a voluntary statement, which, if he makes, shall be reduced to writing and read over and signed by him; but he shall not be sworn. There is no such provision of our law with reference to grand juries. If it were necessary, it would be a sufficient answer to this contention of appellant to rest the matter here. But this question has been before the courts in more than one case in regard to confessions, where the question arose before the examining court; and it has been held that sworn confessions before examining courts can be used against accused. Jackson v. State, 29 Texas Crim. App., 458; Salas v. State,31 Tex. Crim. 485. In each of these cases appellant's confession was reduced to writing and sworn to by him. It was contended by appellant in argument that under statutes like the one under discussion no decision could be found which authorized the sworn confession of a party accused of crime to be taken before the examining court and subsequently introduced against him. The two cases cited, supra — the opinion in the one has been delivered by Judge White, while *Page 28 presiding judge of this court, and the other by Judge Hurt, while occupying the same position, and without dissent in either case — have never before been questioned. We are referred to Wood's case, 22 Texas Criminal Appeals, 431, as authority to sustain appellant's contention. In Wood's case appellant was under arrest, at least was in charge of the officers and under suspicion of the crime undergoing investigation when he was called before the examining magistrate, placed under oath and his testimony taken. However, he was not cautioned. The court held in this character of case that the testimony of the defendant can not be used under such circumstances against him, unless he has been cautioned. And this significant language is found in the opinion: "Looking then to the facts which surround this matter there can be no question but that appellant was in arrest and not being cautioned as the code requires, his testimony taken before the inquest was not competent evidence against him." That case is in line, as we understand, with all the other authorities in this State. It simply held as a matter of justice and in obedience to the plain statutory requirements that before the confessions of a party who is under arrest can be used against him, he must be cautioned. The question in that case was not that contended for by appellant; that is, that the testimony was rejected because he was sworn, but it was rejected because he was not cautioned — for the language used by Judge Hurt in that opinion clearly indicates, if he had been cautioned, although sworn, the testimony could be used against him.

In regard to the instruction of the district attorney to the jailer that no one should be permitted to communicate with appellant, and that she should be kept in close confinement, and the obedience of that order to the extent of declining the interview solicited by the attorney with appellant, this occurring without the knowledge of appellant, could certainly have no effect whatsoever upon whether her confession was voluntary or involuntary in its nature. That the attorney sought the interview was not known to appellant. It therefore could not have affected her mental status in any particular whatsoever in her statement before the grand jury. Nor is the fact that the counsel was so denied the interview, as urged in the bill of exceptions, a reason why the confession should have been excluded. If she or her counsel were of the opinion that some right, constitutional or statutory, accorded her had been violated by the action of the district attorney or by the action of the jailer, or in the matters referred to, it could have been urged in the proper way.

The motion for rehearing is accordingly overruled.

Motion overruled.