On motion for rehearing by the State the record has been perfected with reference to the election and qualification of the special judge.
Appellant was a young negro, about nineteen years of age. He had been married but a short time. There was evidence to the effect that his wife had been criminally intimate with another negro by the name of Atkins. The deceased, Atkins, and the appellant were at a picnic on the day of the homicide. Appellant had been informed of the infidelity of his wife, and at the picnic, she was associating with Atkins. Appellant expressed the desire that she go home with him. She demurred and a quarrel ensued in which she was struck by the appellant with a knife and a wound inflicted from which she died.
The State introduced the written confession of the appellant in which he explained the homicide in harmony with the theory above stated. In the confession he recounted his various efforts to prevent the association of the deceased with Atkins. He described their conduct and his conversation with her. In *Page 7 his testimony given upon the trial, appellant gave a description of the incidents of the occasion of the homicide in harmony with the confession, stating in substance that he had taken his knife out of his pocket for another purpose and without the intention of striking his wife with it; that he had formed no intention of striking her; but that during the quarrel over her relations with Atkins and her reluctance to go home he, in a fit of passion, struck her with the knife without, at that time, intending to kill her.
While in jail, appellant was taken before the grand jury and interrogated. He was given the warning that his statements might be used against him but not in his favor, but the testimony given before the grand jury was not reduced to writing. Upon the trial, the members of the grand jury testified that during his examination in the grand jury room he was asked why he killed his wife and he said: "Because shewould not mind him." The court instructed the jury that these remarks were usable for impeachment only. Appropriate objections were made to the receipt of the testimony, and in our opinion, they should have been sustained. Appellant was under arrest at the time and was brought before the grand jury and the statements made while he was in custody. The evidence adduced was out of harmony with the written confession which the State had introduced, and also at variance with the appellant's own testimony given upon the trial.
The Statute upon the subject of confession forbids the introduction of one made while under arrest unless in writing and signed by the accused, except under certain circumstances which are not in the present case. Art. 810, C. C. P., Vernon's Tex.Crim. Stat., Vol. 2, p. 750. The fact that the confession was made before the grand jury and that the testimony adduced was used for impeachment purposes does not exempt it from the operation of the Statute. This rule has been announced in many decisions of this court. See Wisdom v. State, 42 Tex. Crim. 579; Oliver v. State, 81 Tex.Crim. Rep.; Bloxon v. State, 86 Tex.Crim. Rep.; Williams v. State, 88 Tex. Crim. 95.
The evidence would warrant a verdict of manslaughter, or a lower grade of offense, depending on the intent, the knife used not being a deadly weapon per se, but taking note of the fact that the penalty assessed is the maximum permitted for the offense of manslaughter, we are not able to declare that the jury was not influenced to the prejudice of the appellant by the testimony improperly received. *Page 8
For that reason the State's motion for rehearing is overruled.
Overruled.