Crowell v. State , 56 Tex. Crim. 480 ( 1909 )

On further reflection, we are convinced that this case should be reversed and remanded. The opinion in effect recognized that the testimony of A.J. Tucker, as to statements made by him in the presence of appellant that a horrible murder had been committed, was erroneous. It was believed, however, that the charge of the court in respect to this matter rendered the admission of this testimony immaterial, and probably not hurtful. While the case was ably argued on original submission, there was no brief filed further than a memorandum of the authorities upon which counsel relied, and in the consideration of the case we seemed to have overlooked the fact that there was nothing in the instructions of the court in respect to the silence of appellant in the face of these declarations of Tucker. It is well settled that it is error to admit in evidence a defendant's silence touching declarations made in his presence, unless such statements in effect amount to an accusation against him, and are of a character calling on him to make reply. 2 Wharton on Evidence, sec. 1138; 1 Greenleaf on Evidence, secs. 197, 199, 200 and 233; Loggins v. State, 8 Texas Crim. App., 434; Felder v. State, 23 Texas Crim. App., 477; Ex parte Kennedy, 42 Tex.Crim. Rep.; 57 S.W. Rep., 648; Skelton v. State, 51 S.W. Rep., 944; Sauls v. State,30 Tex. Crim. 496; Long v. State, 13 Texas Crim. App., 211; Hanna v. State, 46 Tex.Crim. Rep.; Gonner v. State, 17 Texas Crim. App., 1; Ex parte Wilson, 47 S.W. Rep., 996; Baker v. State, 45 Tex. Crim. 392, and Commonwealth v. Harvey, 1 Gray, 487.

We are also of the opinion, upon the same authorities, and based practically on the same reasons, that the testimony of the sheriff, J.E. George, was inadmissible.

The only other matter raised in the motion is the supposed misconduct of the jury, and will probably not arise on another trial, and, therefore, need not be considered.

For the reasons stated the motion for rehearing is granted, the judgment reversed and the cause remanded.

Reversed and remanded.