Gilder v. State , 35 Tex. Crim. 360 ( 1896 )

The appellant in this case was tried in the court below under an indictment charging him with murder, was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. From the sentence and judgment of the lower court, he prosecutes this appeal. The appellant makes a number of assignments of error in this case, but there is only one proposition that requires any consideration from us. It appears that one Monroe Jackson was indicted for the murder of the deceased, Polk Phillips; he being the same person for the murder of whom the defendant was subsequently indicted. On the trial of the said Monroe Jackson, the defendant, not then being under indictment, was used as a witness on behalf of the State. At the time of his so being used, he was held under arrest, and was confined in jail as a witness to testify in said case. The defendant's testimony on this trial was subsequently, on the trial of the defendant for the same murder, offered by the State as testimony against him. The same was admitted over his objections, and he reserved his bill of exceptions. This first trial occurred in Tyler County, the place of the homicide, in December, 1893. It further appears that from some cause a mistrial was had of the case in Tyler County, and the venue was changed to Jefferson County, and the trial was pending in said last-mentioned county in November, 1894. It appears that this witness, during the pendency of the case, was carried to the jail of Trinity County, and kept there; and in November, 1894, he was being carried from said Trinity County, by an officer to Jefferson County, as a witness. While on the cars en route, he made to the officer in charge of him, and to others, a statement or confession as to his participation in the killing of Polk Phillips. This confession, on the trial of the appellant, was introduced in evidence, over his objection, and he reserved his bill of exceptions thereto. The record contains no evidence that when appellant testified in said cause against Monroe Jackson, in Tyler County, and before giving in his testimony in said case, he was warned by any officer or by the court; nor does it appear that, prior to his making the statement or confession to the officer and others on board the cars, he was warned by the officer, or by any other person. While it is true that no accusation or complaint had been lodged against the appellant prior to his giving in said testimony on the trial of Jackson, or prior to his statement on board the cars, yet the record furnishes ample testimony that he was in custody during all of said time, as stated, as a witness to be used in said case; but it was also true that he was suspected of complicity in the murder of said Polk Phillips, and that he knew that he was so suspected. As stated by this court in Wood v. State, 22 Tex.Crim. App., 431, which is similar as to this question to this case (quoting from the case of People v. McMahon, 15 N.Y. 384) : "Tested by the rules of common law, this testimony was not, under the circumstances, admissible against the defendant on his trial." And, under our statute, which regulates the procedure in this regard, the confessions of the defendant made in his statement as a witness on the trial of Monroe Jackson in Tyler County, as also the statement made to the officer and others, while en route, as a witness, to Jefferson County, were clearly not admissible. He was under arrest at the time, was in the custody of the officers, and no warning whatever was given him, as the statute requires under such conditions. See Code Crim. Proc., Art. 750. For the error of the court in admitting the testimony of the confessions of the defendant, which was the most material, if not the only, testimony upon which his conviction in this case rests, the judgment and sentence of the lower court must be reversed, and the case is accordingly reversed and remanded.

Reversed and Remanded.