
    JACQUES v. STATE.
    (No. 9154.)
    (Court of Criminal Appeals of Texas.
    March 25, 1925.
    Rehearing Denied May 13, 1925.)
    (. Criminal law <&wkey;(092(l4) — Bill of exceptions containing grounds of objections is not certificate'of. judge that facts forming basis of objections are true.
    Incorporation in bill of exceptions of grounds of objections to admission of confession is not certificate of judge that facts which form basis of objections are true.
    2. Criminal law <&wkey;530 — Statement which does not contain certificate of magistrate held not defective as confession.
    Statement in writing signed by mark of accused, duly witnessed and containing the warning required by statute, but not containing cer- j tificate of magistrate required by Yernon’s Ann. Code Cr. Proc. 1916, art. 295, relating to voluntary statements made before magistrate, is not defective as a confession, since Crim. Code Proc. art. 810, relating to confessions, does not require formal certificate.
    3. Criminal law &wkey;736(2) — Admission of con-féssion held not error.
    Where accused claimed that statement made before magistrate was procured by subjecting him to discomforts in jail, but there was evidence of defendant’s composure while making statement, and also evidence contradicting claim of coercion, held, that admission in connection, with instruction to jury to determine whether it was voluntary was not error.
    4. Witnesses <&wkey;380 (5) — State may impeach its own witness by showing that witness had' made contradictory written statement.
    Where state’s witness on direct examination gave testimony contradictory to statement, which she had signed, held, that it was proper to impeach witness by exhibiting statement to her and on witness denying making it, then, after laying predicate to introduce evidence that; she had made written statement contradictory to' oral testimony.
    5. Witnesses <@=>380(5) — Party may impeach' his own witness who gave testimony injurious to his cause.
    Witness, giving testimony injurious to cause of person by whom he is offered, may be impeached by showing previous contradictory statements, in view of Yernon’s Ann. Code Or. Proc. 1916, art. 815.
    Appeal from District Court, El Paso County ; AY. D. Howe, Judge.
    Salvador Jacques was convicted of murder, and he appeals.
    Affirmed.
    E. B. Elfers, of El Paso, for appellant.
    Tom Garrard, State’s Atty., apd Grover C. Morris, Asst. ■ State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at death.

.The deceased, Coleman, was a police officer and had arrested the appellant on previous occasions. The deceased left his home in an automobile between 4 and 4:30 in the morning. He stated upon leaving that there had been some burglaries committed and that he was going out to try to catch the burglars.

Soon after he left three shots were heard. After the first shot there was a groan, and then two more shots were fired. The car was standing on the street, and in it the dead body of the deceased was found in a sitting position. His pistol was in his scabbard. There was evidence that the appellant, on the former occasion of his arrest, had threatened to kill the police officers. Immediately after the gunshots and the exclamation, a man was seen to run away, and tracks were subsequently found which seem to have corresponded in general description with the shoes worn by the appellant at the time of his arrest. Appellant was arrested north of Rosa street on the night after the deceased was killed. It seems that he was at a camp fire and attempted to draw his pistol when the officers appeared. Ammunition and a pistol were found in his possession. The deceased was shot from the rear, and his heart was penetrated.

Appellant testified that he did not shoot the deceased; that the pistol in his possession at the time of his arrest belonged to him but had been pawned in order to get his grandfather out of jail; that he did not get it. back until the day of his arrest.

The appellant’s confession in these words was introduced in evidence:.

“Yes, sir; I killed Coleman. I have got nothing else to say. Once he was going to arrest me on a charge of vagrancy and he beat me up pretty bad. This happened on Ninth street some time ago. I got away from him that time. This morning that this thing happened he was going to catch me without me doing anything to him. He already had me under arrest, and as he had already beat me up once and that morning hadalready landed two blows on me with his gun, I pulled out my gun and shot him; I don’t know how many times.”

There are two bills of exception. Appellant was brought before the justice of the peace, Rawlins, sitting as a magistrate, when, according to a written statement and oral testimony, the appellant was informed that he was accused of the murder of the deceased Coleman and that he had a right to make a voluntary statement; that it was not compulsory that he do so, and that, if he made such a statement, it would be reduced to writing and could be used against him upon his trial, but could not be used in his favor, whereupon appellant made a statement which was reduced to writing, signed with his mark, and witnessed by R. B. Rawlins and R. S. C.urran, Jr. This statement was introduced in evidence against the protest of the appellant, wherein he made the objection that the statement was not voluntary and that there had not been proper warning; that the appellant had been coerced, threatened, and intimidated. These were but grounds of objection, unverified by any statement of the trial judge. “Incorporation in bill of exception of grounds of objection is not a certificate of the judge that the facts which form the basis of the objection are true, merely showing that such an objection was.made.” See Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405; Quinney v. State, 86 Tex. Cr. R. 356, 216 S. W. 882.

In qualifying the bill the trial judge said that the document was not admitted as a voluntary statement made before the examining magistrate, but that it was regarded as containing the requisites of a confession and was received in evidence as such. The trial court, in holding that the instrument was not admissible as showing’ a voluntary statement before a magistrate, was no doubt influenced by the absence of any certificate by the magistrate which seems to be required by article 295, C. C. P., wherein it is said:

“ * * * And the magistrate shall, in every case, attest by his own certificate and signature to the execution and signing of the statement.”

See certificate suggested in Willson’s Criminal Eorms, No. 1045. The statute touching confessions, however, does not require a formal certificate, but merely that it be witnessed by some person other than a peace officer. See article 810, C. C. P.; also Gaston v. State, 55 Tex. Cr. R. 270, 116 S. W. 582; Martin v. State, 57 Tex. Cr. R. 595, 124 S. W. 681.

In the statement as set out in the bill of exceptions we fail to perceive any inherent defect as a confession. It is in writing, signed by the mark of the accused, duly witnessed, and contains the warning required by statute. The evidence relied upon by the appellant to show that the confession was not voluntary does not accompany the bill. In qualifying it, however, the trial court refers to the statement of facts which we have examined.

The witness Montoya, an interpreter, upon behalf of the appellant, testified in connection with his cross-examination that the appellant, while in the court of Judge Raw-lins, after warning had been given, said: “Yes; I killed Coleman; I have nothing else to say.” That the district attorney then suggested to the appellant that, as he had admitted the killing, he had better give some reason for it, if any existed. That it was in response to this that the appellant added the concluding words in the statement which he signed. >

Appellant in his testimony claimed that he had been subjected to many discomforts while in jail, such as having his feet chained, the windows of his cell closed in order to prevent ventilation, and that his food was meager; that the confession was made after eight days of such confinement, and that he was desirous of releasing himself of these discomforts. Other witnesses who claimed to have been present at the examining trial testified to the composure of the appellant at the time the statement was made. One of these witnesses said that at the time of the trial appellant needed a hair cut and a shave; that he looked like a man who had been in jail; that his appearance was not normal, but that his demeanor appeared so. The district attorney gave testimony contradictory of the claim that there was coercion upon the appellant and supporting the state’s theory that the statement was voluntary. Similar testimony was given by the county attorney.

In instructing the jury the court, in appropriate language, directed that they determine whether or not the confession was voluntary and whether it was induced by improper methods such as coercion or promises. The court also instructed the jury upon the defensive issue of manslaughter raised by the confession.

In the light of the record, we are constrained to the view that nothing is revealed which would warrant this court' in-holding the confession involuntary or other than freely made; nor that would justify this court in holding that in receiving it in evidence the trial court committed error.

Another bill of exceptions relates to the-procedure with reference to the witness Petra Jiminez. She was introduced by the state,, and in the bill there is not set out the testimony which she gave on direct examination. In view, however, of the extreme penalty, we have examined the statement of" facts to ascertain her direct testimony. She was a girl 19 years of age and a paramour-of the appellant. According to her testimony on direct examination, she and the appellant slept together on the night of the-homicide. They retired early in the night and appellant remained in bed with her until" sun up. He did not at that time possess any pistol. The pistol found upon his person, at the time of his arrest was in the pawnshop at the time of the homicide. Upon her giving this testimony, state’s counsel asked her if she had not signed a written statement’on a previous occasion, which statement he exhibited to her at the time. This she denied. He then, after laying the predicate, introduced evidence that she had made a written statement in which she said that on the night of the homicide the appellant did have the pistol in question; that he arose about 4 o’clock in the morning, taking the pistol with him; that he returned about 6 o’clock and told her that a policeman had been shot; that the policeman was shot because he wanted to search the appellant. The introduction of, this impeaching testimony was resisted upon the ground that the conditions authorizing the state to impeach its own witness did not exist.

In qualifying the bill, the trial court certifies that at the time the witness was called state’s counsel was in possession of a certain statement, and that nothing had occurred which would cause the court to suspect that in offering the witness counsel did not believe that the'testimony of the witness would be in accord with her previous statement; and, her testimony being harmful to the state, it was deemed permissible to allow her impeachment by the use of her previous declarations. In the light of the bill, as qualified, and the facts as we learn them from the record, we are impressed with the view that in the ruling of the court there was, no departure from authorized procedure. When a witness who is introduced gives testimony injurious to the cause of the person by whom he is offered, the witness may be impeached by showing previous contradictory statements. This is in accord with the statute (article 815, C. C. P.), and many decisions of this court collated in Vernon’s Tex. Crim. Stat. vol. 2, p. 763.

In the present case the previous declarations of the witness were specifically limited in the charge of the court so that they would not be used as original but as impeaching testimony alone.

Taking note of the circumstances portrayed by the testimony and the' confession of the accused, and recalling that the verdict of the jury has the approval of the trial judge, and perceiving no fault in the procedure, this court feels in duty bound to order that the judgment be affirmed. It is so ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant’s motion reasserts the alleged errors relied on by him originally, and questions the correct disposition of them in our former opinion. On account of the extreme penalty assessed, we have again examined the bills of exception, and in connection therewith have scrutinized the statement of facts closely. We have discovered nothing which impresses us that the disposition already made of the case was improper. The reasons for our views have already been given, and to write further would be a repetition and enlargement only, which we deem unnecessary.

The motion for rehearing is overruled  