Appellant's conviction was for theft of cattle. The facts show that Robert Finch's cow was driven from his pasture. He identified the hide of the animal in the possession of the express company, it having been shipped by R.N. Epperson. Epperson did not in person deliver the hide to the express company, but it, with other hides, was delivered by a negro boy not identified. Epperson kept a restaurant and butchershop, and was in the habit of shipping hides. There was evidence that appellant had at times worked for Epperson, and aside from the appellant's confession, there was evidence that appellant was in Epperson's employ at the time of the theft. Appellant was arrested and placed in jail and the evidence brought forward in the bill of exceptions is conflicting as to whether his detention was under charge of the offense or as an attached witness, but there is no conflict as to the fact that he was suspected of the crime; that he had knowledge of this; that he was brought by the jailer into the grand jury room and there made a statement with reference to his connection with the crime and that he was returned to the jail in custody of the jailer after making the statement. The county attorney said that before the statement was made he had sufficient evidence against appellant, in his judgment, to form a basis of indictment against him for this offense. When brought before the grand jury the State's attorney advised appellant that he was not required to make a statement and that one made might be used against him and could not be used in his favor; and after this warning appellant stated, in substance, that he and another employe of Epperson got the cow from Finch's pasture and brought her to Epperson's place, butchered her at night and the next morning each received $8 from Epperson for their services in the matter.
This confession was not reduced to writing, but over appellant's objection oral proof of it was made. This court has frequently held that a confession made before the grand jury while the accused was under arrest could be used against him, provided the proof showed that the statutory requisites to the admissibility of the confession were met. Wisdom v. State,42 Tex. Crim. 579. The fact that the confession is made in the presence of the grand jury does not render it admissible, nor prevent it. The inquiry is: Was the confession made under the conditions and with the formalities required by statute to make admissible a confession when the accused is under arrest? Branch's Digest, sec. 227, and cases cited; Thomas v. State,35 Tex. Crim. 178; Grimsinger v. State, 44 Tex. Crim. 1. Formerly the statutory requisites only required that the confession be voluntarily made after due warning. As amended by the Act of 1907, page 219, the statute requires that the things above, and in addition thereto that the confession be in writing and signed by the accused. The law is as follows: "The confession of a defendant may be used *Page 531 in evidence against him if it appears that the same was freely made without compulsion or persuasion, under the rules hereinafter prescribed." C.C.P., art. 809.
"The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless made in the voluntary statement of accused in an examining court in accordance with law, or be made in writing and signed by him; the written statement shall show that he has been warned by the person to whom the same is made," etc. C.C.P., art. 810. It is only those confessions which are made in accordance with law which are admissible. Brown v. State, 55 Tex.Crim. Rep.; Vernon's C.C.P., p. 851, note 3. That the circumstances under which the statement was made by appellant were such as to render it inadmissible unless the formalities prescribed by the foregoing statute were complied with, is, we think, established by decisions of this court in the case of Fry v. State,58 Tex. Crim. 170; Gilder v. State, 35 Tex.Crim. Rep.; Calloway v. State, 55 Tex.Crim. Rep.; Simmons v. State, 184 S.W. Rep., 226; Wood v. State, 22 Texas Crim. App., 431. In Fry's case, Fry was suspected of theft and the matter was under investigation by the grand jury, and while not actually under arrest or in jail he was practically in custody in that he would not have been permitted to have escaped. The court, among other reasons for holding testimony inadmissible uses the following language: "Where a statement, admission, or confession of an accused party when under arrest or in confinement, is sought to be used, under the present statute, the same must be reduced to writing under the formalities and solemnities set out in the terms of that statute. The statements of appellant were not reduced to writing as required by the recent statute, and, therefore, inadmissible." 58 Tex.Crim. Rep.. In Gilder's case, 35 Texas Crim. Rep., testimony of a witness given with knowledge that he was suspected of the crime, and under circumstances showing arrest and custody similar to those in the present case, it was held by this court in the opinion by Presiding Judge Hurt that the statement given in the absence of the formalities required by the statute with reference to confessions was not admissible against him; to the same effect is the holding in the Woods case, 22 Texas Crim. App., 431. In Calloway's case, 55 Tex.Crim. Rep., the principle applied in the Wood case, 22 Texas Crim. App., supra, and the Gilder case, 35 Texas Crim. Rep., supra, was adhered to by this court to a statement of facts in which the county attorney had caused the party through the use of a subpoena to come to his office and give testimony where prosecution for the offense under investigation followed shortly thereafter. In the Simmons case, 184 S.W. Rep., 226, and the case of Wood v. State, 22 Texas Crim. App., supra, and other cases following which are mentioned above, were expressly reaffirmed in a case where the appellant's statement before the grand jury, made without previous warning, was held inadmissible. *Page 532
The decisions of this court are harmonious to the effect that to render a confession admissible where the party making it is in the custody of an officer that it must be given under the formalities named in the statute and one of these in the present statute is that it be reduced to writing and signed by the party making it.
Appellant's confession was made while he was in custody of an officer, and was voluntary and after warning. It was not in an examining court; it was not reduced to writing, and it was not signed by the appellant, and its introduction against him was prohibited by article 810, C.C.P.; Branch's Penal Code, p. 42, and cases cited; Layton v. State, 52 Tex.Crim. Rep.; Branch's Ann. P.C., p. 33, sec. 60, and cases cited.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.