Appellant was convicted of burglary, and his punishment assessed at two years confinement in the penitentiary.
The indictment charged the burglarious entry of a storehouse of Frost Campbell, with intent to commit theft, without the consent of both as to the taking of property. On the trial the State proved the want of consent of Campbell to the taking of the property, but did not prove the want of consent of Frost. This is urged as a ground for reversal. Campbell and Frost testified; Campbell fully as to his want of consent to the taking of the goods, but Frost testified only as to his nonconsent to the entry. This latter was not necessary. Treadwell v. State, 16 Texas Crim. App., 643; Taylor v. State, 23 Texas Crim. App., 639. Nor is it sufficient under the facts of this case, that the want of consent to the taking might be inferred from circumstances. Where the alleged owner is a witness, and fails to give direct and positive testimony to his want of consent to the taking of the property, such want of consent will not be inferred from other circumstances in evidence. Good v. State, 30 Texas Crim. App., 276. While it is true that the want of consent may be proved by circumstantial evidence, as said in Wilson's case,45 Tex. 76; Kemp's case, 38 Tex. 110; McMahon's case, 1 Texas Criminal Appeals, 102; Welsh's case, 3 Texas Criminal Appeals, 422; Trafton's case, 5 Texas Criminal Appeals, 480; Clanton's case, 15 Texas Criminal Appeals, 448; Schultz's case, 20 Texas Criminal Appeals, 308; Mackey's case, 20 Texas Criminal Appeals, 603 — yet this character of evidence can not be resorted to where direct evidence of the fact is obtainable. Jackson v. State, 7 Texas Crim. App., 363; Stewart v. State, 9 Texas Crim. App., 321; Wilson v. State, 12 Texas Crim. App., 481; Bowling v. State, 13 Texas Crim. App., 338; Williamson v. State, 19 Texas Crim. App., 514; Anderson v. State, 14 Texas Crim. App., 49; Love v. State, 15 Texas Crim. App., 563; Clayton v. State, Id., 348; Miller v. State, 18 Texas Crim. App., 34; Pratt v. State, 19 Texas Crim. App., 276; Scott v. State, Id., 325; Schultz v. State, 20 Texas Crim.
App., 308. It is a familiar rule that the best evidence attainable must be adduced.
The admissions or confessions of appellant, made before the grand jury, after being warned, in regard to the burglary charged in the indictment, were introduced in evidence. He reserved an exception, and assigns error. The ruling of the court is correct. Thomas v. State, 35 Tex.Crim. Rep.; Jones v. State,33 Tex. Crim. 7; Paris v. State, 35 Tex.Crim. Rep.; Thompson v. State, 19 Texas Crim. App., 593; Nicks v. State,40 Tex. Crim. 1. It is claimed that these authorities are in contravention of Gutgesell v. State (Texas Criminal Appeals), 43 Southwestern Reporter, 1016. That case seems to indicate that testimony before a grand jury can be used for two purposes only: (1) Where perjury is assigned upon evidence adduced before the grand jury; and (2) where witnesses testifying before the court made different statements before the grand jury in regard to the same matter — in other words, for impeachment purposes. The cases cited above in support of the foregoing proposition as to confessions made by a defendant before the grand jury in regard to the matter for which he is being tried were not discussed in Gutgesell's case, and no reference was made to the decisions cited. If it was intended to overrule those cases, certainly it should have been mentioned, or the propositions discussed in the Gutgesell case. Nor is the Gutgesell case correct in stating that the testimony given before the grand jury could only be used for impeachment purposes, for the authorities above cited are directly to the contrary. There are other instances in which such testimony can be used. Where an attack is made upon an indictment by reason of the fact that some person other than those authorized were present before the grand jury when the indictment was considered, the secrecy hanging around the grand jury can be unveiled, and testimony introduced showing that fact. Rothschild v. State, 7 Texas Crim. App., 519; Stuart v. State,35 Tex. Crim. 440; Sims v. State (Texas Crim. App.), 45 S.W. Rep., 705. So the question may be investigated as to whether the grand jury is a full and complete grand jury. Drake v. State, 25 Texas Crim. App., 293; Jackson v. State, 25 Texas Crim. App., 314; Smith v. State, 19 Texas Crim. App., 95; Watts v. State, 22 Texas Crim. App., 572; Woods v. State, 26 Texas Crim. App., 490; Trevinio v. State, 27 Texas Crim. App., 372; Mays v. State, 28 Texas Crim. App., 485. "Neither the rule of secrecy nor the oath of secrecy which grand jurors are required to take prevents the public or an individual from proving by one or more of the grand jurors in a court of justice what passed before the grand jury, where, after the purpose of secrecy has been effected, it becomes necessary to the attainment of justice and the vindication of truth and right, in a judicial tribunal, that the conduct and testimony of prosecutors and witnesses shall be inquired into." 17 Am. and Eng. Enc. of Law, 2 ed., p. 1294; Jenkins v. State, 35 Fla.,
737, 18 So. Rep., 182; Hinshaw v. State, 147 Ind. 334, 47 N.E. Rep., 157; State v. Buskirk, 59 Ind. 384; Burdick v. Hunt,43 Ind. 381; Shattuck v. State, 11 Ind. 475; Burnham v. Hatfield, 5 Blackf., 21; Hunter v. Randall, 69 Me. 183; State v. Benner,64 Me. 267; Sands v. Robison, 12 Smedes M., 704; State v. Broughton, 29 N.C. 96, 45 Am. Dec., 507; State v. Moran, 15 Ore., 262, 14 Pac. Rep., 419; Jones v. Turpin, 6 Heisk., 181; United States v. Kirkwood, 5 Utah 123, 13 Pac. Rep., 234. And the refusal of a grand juror to testify is contempt. Ex Parte Schmidt, 71 Cal. 212, 12 Pac. Rep., 55. Nor can witnesses before a grand jury invoke the rule of secrecy, after the hearing before that body has been terminated; nor can witnesses rely upon such rule in criminal proceedings against them, or where it is sought subsequently to impeach their credibility as witnesses, or to take advantage of admissions made by them. People v. Northey,77 Cal. 618, 19 Pac. Rep., 865, 20 Pac. Rep., 129; People v. Kelley, 47 Cal. 125, 126; People v. Young, 31 Cal. 564; State v. Broughton, 45 Am. Dec., 507; United States v. Kirkwood,5 Utah 123, 13 Pac. Rep., 234; People v. Reggel, 8 Utah 21, 28 Pac. Rep., 955. So it is held that testimony given by a witness before the grand jury can be used to refresh his memory on the trial of the case. Spangler v. State, 41 Tex.Crim. Rep..
Where a person is being tried for crime, a confession voluntarily made by him before a grand jury may be proved by members of that body, and it has been held in civil actions a grand juror may testify to admissions made by a person against his interests before the grand jury. In support of the proposition that grand jurors may testify as to a defendant's confession, see Sikes v. Dunbar, 2 Selw. N.P., 13 ed., 1015. This case was decided by Lord Kenyon, and was cited in State v. Broughton, 29 North Carolina, 96, being reported in 45 American Decisions, 507. See also United States v. Porter, 2 Cranch, Crim. Cas., 60, 27 Fed. Cas., 595 (No. 16,072); United States v. Charles, 2 Cranch, Crim. Cas., 76, Fed. Cas., No. 14,786; Hinshaw v. State, 147 Ind. 344, 47 N.E. Rep., 157; State v. Broughton, 45 Am. Dec., 507; and the cases above cited in 5 Utah 13 Pac. Rep., and 8 Utah 28 Pac. Rep. As to the use of admissions made before the grand jury in civil cases, see 5 Blackf., 21; Kirk v. Garrett, 84 Md. 383, 35 Atl. Rep., 1089; 17 Am. and Eng. Enc. of Law, p. 1296, and notes 3-6. So the evidence of the witness given before the grand jury may be introduced against him under a charge of perjury, through the mouth or mouths of the grand jurors. So, such testimony may be used for impeachment purposes. See Id., p. 1297, note 1, for collation of authorities. The authorities cited in support of the proposition that confessions made by a defendant before a grand jury can be subsequently used on his trial are in line with the decisions of our State.
The judgment of the County Court of Dallas County was introduced, which adjudged appellant insane. Error is assigned upon the court's
charge in relation to this matter, and special charges were asked to cover the alleged defects. Upon another trial a charge should be given in accordance with the rules announced in Hunt v. State, 33 Texas Criminal Reports, 252. For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.