Roberts v. State , 89 Tex. Crim. 454 ( 1921 )

In our original opinion we held that where a defendant voluntarily becomes a witness in his own behalf, that his testimony where relevant and material may be used against him in a re-trial of the same case, or the trial of another case, where his statements on the former trial are pertinent. Appellant urges that we were in error in so far as our announcement goes to the extent of permitting the former testimony of an accused to be reproduced against him in an entirely new case. Upon principle and reason we do not think we fell into error in so holding.

In Johnson v. State, 39 Tex.Crim. Rep., 48 S.W. Rep., 70, the defendant was charged with theft in the County Court and with burglary in the District Court. He entered a plea of guilty to theft, and upon his trial for burglary his plea of guilty was introduced against him over his objection that he had not been warned of the consequences at the time he entered this plea of guilty to the theft charge. It was held legitimate evidence on the trial of the burglary charge, upon the theory that the plea of guilty in the misdemeanor case was freely and voluntarily made. In Collins v. State, 39 Tex.Crim. Rep., 46 S.W. Rep., 933, while defendant was being tried the second time he was cross-examined with reference to a certain statement made by him while on the witness stand on the first trial of the case. An objection was urged to the testimony because appellant was not warned or cautioned under the statute relative to confessions before his evidence was given on the former trial. Judge HENDERSON, in discussing the question, used the following language:

"It is contended here that, although he voluntarily took the stand, such testimony could not be used adversely to him, unless he had been warned before making the same, although he was a witness in his own behalf. If this contention is right, then the statements so made could not be used by the jury that tried the first case, because he had not been warned. If the failure to warn could be used to prevent his testimony at a former trial from being used at a subsequent trial, the same reason would preclude its use at the first trial."

Later on in the opinion, discussing the same matter, he said:

"A defendant having taken the stand in his own behalf, it is presumed that he does so after having advised with his counsel, and after full knowledge that he can become a witness on his own behalf; and that when he does so he is to be treated, while on the stand, as any other witness, and his testimony so given can be used against him at any subsequent trial. If this were not so, he would testify under a ban, and not with that freedom which the law seems to apprehend."

Wharton's Criminal Evidence, page 1371, Sec. 664, 10th Edition, discussing the question now under consideration, says:

"In the earlier cases, confessions under oath were generally excluded. The reason for this was that the ``examination of the prisoner should be without oath, and, of the others, upon oath,' so that where the accused was examined on oath the confession was rejected, because of the illegal manner in which it was taken, and not merely because of the oath. But, when the disqualifications of the accused were removed, and he was allowed to become a witness in his own behalf at his own election, the rule ceased when the reason ceased. Hence, the mere administration of an oath, to the accused, will not render the confession involuntary; nor the fact that the confession was made under oath, as a witness, or otherwise, in prior judicial proceedings, if no compulsion nor undue influence was used."

If an accused, not under arrest, makes a statement of a criminative character it may be used against him in any prosecution wherein it may become pertinent. An accused can become a witness only by his own voluntary act; and when he thus voluntarily takes the witness stand, and under the sanction of an oath speaks, it is as any other witness; and if his statements while testifying become pertinent to an issue arising in the subsequent trial of the same case, or of another case, we can see no valid reason why the State may not prove the statements against him. If A were on trial in the County Court for a misdemeanor, and should testify that he was nineteen years of age. and subsequently was on trial for a felony in the District Court, and in an effort to secure the benefit of the "juvenile law" should swear he was only sixteen years of age, it would seem illogical and contrary to principle to deny the State the right to prove his former statement on that issue. If B should have testified on the misdemeanor trial that A was nineteen, and then change his testimony on the trial of the felony, and swear A was only sixteen, certainly it would not be questioned but that the State could attack B by showing his former testimony. In principle we can see no distinction. When A voluntarily takes the witness stand in his own behalf the safeguard under the law of "confessions" is waived by him; in the eyes of the law he becomes as any other witness; if, while testifying, he makes inculpatory admissions, they may be proven against him in any case where pertinent.

The holding here is not in conflict with Mathis v. State,84 Tex. Crim. 514, 209 S.W. Rep., 737. In that case a witness while testifying in a civil suit declined to answer a question because it would criminate him. He was compelled by the court to answer. On a subsequent trial of the witness on a criminal charge the State proved against him his unwilling and forced statement. This court properly held it was error.

For the reasons stated, we adhere to our original opinion, and the motion for rehearing is overruled.

Overruled.