
    WILLIAMS v. STATE.
    (No. 8093.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.)
    I. Criminal law &wkey;>5IS(2) — Question to defendant whether he had signed confession held improper.
    A question asked defendant on cross-examination as to whether he had signed a voluntary confession while under arrest was improper, in absence of a previous showing that defendant had been warned as required by law.
    2. Criminal law <&wkey;»706 — Remark of prosecuting attorney as to confession held improper.
    In a liquor prosecution, in which defendant denied on cross-examination that he had 'signed a voluntary confession, a remark of the prosecuting attorney in the jury’s presence that he intended to show that defendant had signed such confession was improper.
    3. Criminal law &wkey;>518(2) — Evidence of confession made under arrest inadmissible without showing that defendant warned.
    In a liquor prosecution, the court erred in permitting a witness to testify that defendant had signed a confession admitting the sale of liquor, while under arrest, there being no showing that defendant had been warned.
    4. Witnesses <&wkey;>379(ll) — Statements made by defendant when under arrest and unwarned inadmissible to impeach him.
    In a liquor prosecution, where defendant denied that he had confessed while under arrest, the court erred in permitting a witness to testify that defendant had made a confession, for the purpose of impeaching defendant as a witness, such statements when not expressly admissible, under Code Or. Proc. 1911, art. 810, being inadmissible for any purpose.
    5. Criminal law &wkey;f400(9), 419, 420(2)— Statement of district attorney as to defendant having made a confession held hearsay and secondary.
    In a liquor prosecution, the court erred in permitting the prosecuting attorney to testify, over objection, that he did not know of his own knowledge that defendant had made a voluntary statement, but that he had ample proof from other sources that defendant had done so, such testimony being inadmissible as hearsay, and being but secondary evidence of an unwarned confession.
    6. Criminal law <i&wkey;5l8(2') — Statement of defendant in nature of confession while under arrest and unwarned held inadmissible.
    In a liquor prosecution, the court erred in permitting witness who had testified that defendant had made no voluntary confession in writing, within his knowledge, to state that, when defendant learned certain women were under arrest, he said he would take the blame, such statement being in the nature of a confession made orally by defendant while under arrest and unwarned.
    7. Criminal law <&wkey;>720(5) — Witnesses <&wkey;>36l (2) — Testimony and argument of prosecuting attorney as to circumstances of witness indictment held improper.
    In a liquor prosecution, where a state’s witness on cross-examination testified that he was under indictment for a felony in another county, the court erred in permitting the prosecuting attorney thereon to show circumstances claimed to mitigate or excuse the offense and to permit him in his argument to the jury to go into the matter.
    Appeal from Criminal District Court, Dallas County; Eelix D. Robertson, Judge.
    
      Charlie Williams was convicted of violating the Prohibition Law, and he appeals.
    Reversed and remanded.
    Howard H. Dailey and A. J. Harper, both of Dallas, for appellant.
    Shelby S. Cox, Dist. Atty., of Dallas, Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of De-vine, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county for selling intoxicating liquor, and his punishment fixed at one year in the penitentiary.

There are eight bills of exception in the record. Bill No. 2 shows that while appellant was on the stand testifying the state asked him if he did not sign a voluntary confession, to which he replied, “No, sir.” The state then said, “In the district attorney’s office?” to which appellant replied: “No, sir.” Thereupon the district attorney remarked in the presence and hearing of the jury, “I am going to prove he did sign it;” and the learned trial judge said, “All right, connect it up, of course.” It is made to appear that at this time appellant was under arrest and in custody of an officer, and there is no attempt made to show that at that time he had been warned as is' required by law. In this condition of the record the questions asked were manifestly improper and in any condition of the record the statement of the district attorney was improper.

Bill of exceptions No. 3 shows that appellant was arrested on this charge and carried to the district attorney’s office at the courthouse in Dallas county. While on the witness stand he was asked if he did not make a confession, a voluntary statement to Maury Hughes, admitting the sale of the liquor in this case. This appellant denied. Thereupon the state was permitted to call in rebuttal H. G. Oaldwell, who testified that he saw appellant while under arrest in this connection, in the district attorney’s office. He was asked if he knew whether or not appellant made a confession, and replied that he did, and that he saw him sign a paper, and that said paper was a confession of selling this whisky to Brite. This testimony of witness Oaldwell was objected to by appellant on the ground that the defendant was under arrest and in the custody of an officer, and that any confession or statement made would be inadmissible unless it was first shown that he had been duly warned. The action of the court below in permitting this testimony was erroneous.

By bill of exceptions No. 4 it is made to appear that after being arrested upon this charge appellant was carried to the district attorney’s office. While testifying in his own behalf on this trial, he was asked if he had not then made a voluntary statement to Maury Hughes admitting this sale. He denied having made such confession. After the witness Oaldwell had testified that defendant had made a confession in which he admitted selling the liquor in question, the accused made further objection to the introduction of such testimony upon the ground that oral evidence of the contents of the written confession would be inadmissible. The learned trial judge concluded that such testimony was admissible for the purpose of impeaching the appellant as a witness, the latter having denied while on the witness stand that he had made such statement. This court has said many times that statements made by the accused when under arrest and in custody and unwarned, and not expressly admissible under article 810, O. O. P., are not admissible for purposes of impeachment or any other purpose. This action of the learned trial judge was erroneous.

By bill of exceptions No. 5 it is made to appear that, after appellant had testified that he had not made any voluntary statement in writing in the district attorney’s office admitting his guilt in this case, the state called to the witness stand Eton. Shelby S. Oox, criminal district attorney of Dallas county, who was permitted to state over objection that after he went in tho office of district attorney he made search for a voluntary statement or confession made by defendant and had not been able to find it; that he did not know of his Own knowledge that defendant had made a voluntary statement, but that he had ample proof from every source that defendant had done so and that this proof was from what other people told him. This testimony was objected to by appellant because it was hearsay and was seeking to get in evidence an unwarned confession by secondary evidence. The action of the learned trial judge in admitting this testimony was clearly erroneous.

By bill of exceptions No. 6 complaint is made that after appellant denied.while a witness in the case that he had made a written confession to the officer, Hon. Maury Hughes, district attorney, admitting that he made the sale of intoxicating liquor charged in this case, and after he had called as a' witness in his behalf said District Attorney Hughes, who testified that appellant made no voluntary statement or confession in writing of any character, in his presence or with his knowledge, said witness Hughes was then asked by the state as follows:

“He did not sign a statement, but when he learned the women were under arrest, he said, ‘By G-, I will take the blame; yes, I sold the whisky; turn the women loose; I will take the blame; turn the women loose.’ ”

Objection was made to this question, because it was admitted appellant was under arrest and was unwarned at the time and that the question was of itself of a harmful character, and that the statement so testified to by Mr. Hughes was in the nature of a confession made orally by appellant and not in conformity with the law. In admitting this evidence the learned trial judge fell into error.

Bill of exceptions No. 7 complains of the fact that after the state and defendant had introduced their testimony, and before the court had given its charge to the jury or the arguments had been made, appellant moved the court to withdraw from the jury and exclude the testimony of H. G. Caldwell, Maury Hughes, and Hon. Shelby S. Cox above referred to. Appellant’s motion was denied. In refusing to exclude said testimony, all of which was inadmissible for the reasons above stated, the learned trial judge also fell into error.

Bill of exceptions No. 8 reflects the fact that, while state witness Brite was on the stand and had testified that he purchased whisky from the defendant as charged in the indictment herein, on cross-examination he was asked if he was not under indictment for a felony in Dallas county. After some parleying the court directed the witness to answer the question, and he answered that he was under indictment. Thereupon, upon redirect examination by the state, said witness was asked what he was indicted for, and he replied that he was indicted for killing George Sanders. He was then asked who George Sanders was, and he replied that he was ¿ bootlegger. He was then asked how he happened to kill him. All this was objected to on the ground that it was immaterial and prejudicial to go into the details of the particular offense for which the witness was under indictment. As part of this bill of exceptions it is made to appear that in the closing argument by the state the assistant district attorney said:

“The defendant had brought out that the witness Brite was under indictment for a felony, and when the state had undertaken to show the real facts in connection with that indictment the defendant had objected, and did not want the real facts known, but he could tell the jury that Brite was an officer and was under indictment for shooting a bootlegger when Brite was undertaking to make an arrest for the illegal selling of liquor; that Brite was doing his duty as an officer, and trying to enforce the prohibition law, that it was his duty to arrest bootleggers, and if the real facts were known they would not censure Brite.”

To this testimony and this argument the exception was well taken. We need not go into an analysis of it to demonstrate its improper character.

For the errors above mentioned the judgment of the court below is reversed and the cause remanded. ' J 
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