O'Connell v. State

White, P. J.

As a rule of evidence it is settled that “where the prisoner, having been examined as a witness in a prosecution against another person, answered questians to which he might have demurred as tending to criminate himself, and which therefore he was not bound to answer, his answers are deemed voluntary, andas such may be subsequently used against himself for all purposes.” 1 Greenl. Ev. (Redfield’s ed.) sec. 225; Alston v. State, 41 Texas, 39.

Our statute requires, however, that on an examining trial had before a magistrate the testimony shall be reduced to writing, and be signed by the witness and certified by the officer taking the same. Code Crim. Proc. art. 267. Where this is required the law conclusively presumes that the magistrate performed all his duty, and in such case no paroi evidence of what the witness said on that occasion can be received. But if it is shown that the examination was not reduced to writing, or, if the written examination is wholly inadmissible by reason of irregularity, paroi evidence is permissible to prove what was disclosed. If it remains uncertain whether it was reduced to writing or not by the magistrate, it will be presumed that he did his duty, and oral evidence will be rejected. 1 Greenl. Ev. sec. 227; Whart. Crim. Evid. (8th ed.) sec. 667; Guy v. State, 9 Texas Ct. App. 161; Dunlap v. State, 9 Texas Ct. App. 179.

Under these rules the objection made by defendant to the testimony of the witness Smith as to statements made by defendant on the examining trial of Hide, and which were reduced to writing, should have been sustained; the written testimony taken by the magistrate being the best if not the only admissible evidence.

But it is said that the written testimony would have been itself inadmissible became at the time defendant was a witness in the case of Hide, and made the statements criminating himself, he defendant, was under arrest. It is not very clear from the record whether at the time the statements were made defendant was under arrest for the offense now charged against him, and with which Hide also was charged, or for another and different crime. In either event, the rule seems now established that, “Ho statement made by a party while in jail or legal custody is competent evidence against him, even as a mere link in a chain of evidence, unless it was voluntarily made before an examining court, or was voluntarily made after caution that it might be used against him, or unless in connection therewith he made statements of facts and circumstances found to be true, and which tend to establish his guilt. And it is immaterial that the offense for which he was in custody when he made the statement was a different offense than that ón the trial for which it is offered in evidence. Taylor v. State, 3 Texas Ct. App. 387; Parchman v. State, 2 Texas Ct. App. 229; Code Crim. Proc. art. 750.

The objection to the written testimony, and in fact to the whole admissions or confession of defendant, is further met by the state with the claim that, though made whilst defendant was under arrest, still they are admissible because in connection therewith he made a statement of facts and circumstances found to be true which tended to establish his guilt. It will be found, however, that the rule thus invoked will not admit the entire confession, but is limited solely and strictly to the facts and circumstances found to be true. To go beyond and admit the entire confession would be contrary to the settled construction of our statutes regulating confessions. Davis v. State, 8 Texas Ct. App. 510; Walker v. State, 9 Texas Ct. App. 38, and authorities cited.

It follows from the foregoing that, if the testimony of the accused given on another trial was voluntary and given when he was not under arrest, it would be prima facie competent evidence against him. But if the evidence was taken before an examining court that then the written testimony was alone admissible. If the party was under arrest and duly cautioned, then the written evidence would also be admissible; but if he was not cautioned his inculpatory disclosures voluntarily made would be admissible against him if the disclosures were found to be true, while at the same time this would not let in other statements or declarations, if any such there were, not directly connected with or explaining the information he gave. We throw out these suggestions with a view to another trial and because we are not sufficiently apprised as to the nature, character and extent of the confessions as they will or may be disclosed by the written testimony, so as to determine how far under the above rules they would be competent.

Because the court erred in permitting paroi evidence of the testimony as taken and written down on the examining trial, the judgment is reversed and the cause remanded.

Reversed and remanded.