
    REYNOLDS v. STATE.
    (No. 4641.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.
    Dissenting Opinion, Dec. 31, 1917.)
    1. Criminal Law <S=539(2) — Statements in Preliminary Proceedings — Warning.
    Where one was examined as a witness in proceedings before a magistrate or on a coroner’s inquest, and was then aware that he was charged or suspected of the crime under investigation, his testimony there cannot be received against him upon his trial for the same offense, unless he was warned.
    2. Criminal Law <®=>539(2) — Statements in Preliminary Proceedings — Warning.
    Accused’s testimony on such investigation, introduced to fix culpability upon some one, especially upon accused, and which placed her at the scene of the homicide in a position where she could have used the gun, and excluded the presence of everybody except herself and deceased, was not admissible on the ground that it was merely exculpatory.
    3. Criminal Law <®=>899 — Waiver.
    In a trial for homicide, error in admitting the statements of defendant on a preliminary investigation in which she was charged or suspected of the crime was not waived by the fact that she took the stand to explain the testimony or lessen its consequences.
    4. Criminal Law <⅜^1169(5) — Harmless Error-Admission oe Evidence — Limitation ¿by Charge.
    The court cannot limit the effect of erroneous testimony by a charge.
    Prendergast, J., dissenting.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Florence Reynolds was convicted of murder, and she appeals.
    Reversed, and cause remanded.
    Reeder & Reeder and J. B. Dooley, all of Amarillo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and allotted 20 years’ confinement in the penitentiary.

The evidence discloses that she and her husband, the deceased, were hunting. They were riding in a buggy, she doing the driving. .Her husband was very fond of hunting, and they were out on this occasion, as they had been on many previous occasions, killing rabbits with which to feed their turkeys, of which they had about 200. On this particular occasion several rabbits had been killed, and he had the buggy stopped suddenly upon discovering three rabbits in a bunch. He jumped out of the buggy to kill the rabbits, and when the gun went off he fell to the ground shot. The evidence shows that they had a pistol, a rifle, and a shotgun in the buggy, and that the deceased used the rifle and the shotgun at his pleasure in shooting rabbits, and seems to have been a very fine shot. The shotgun was cocked, the breech was on the seat, with the barrel back against the buggy top, which seems to have been let down. His custom was to so carry the shotgun. The body of deceased was found by the .side of the buggy lying with his feet a little northeast and his head a little south, not quite or exactly parallel with the buggy. The wound was inflicted by the discharge of the shotgun. By the side of the body was found the rifle and the shotgun, being upon opposite sides of his body. The wife was the only one present at the time of his death. The authorities instituted an investigation, and held what the witnesses term a coroner’s inquest just after the killing. The body was carried to town, and the next morning at the courthouse another proceeding was had in the nature of a court inquiry, or a continuance of the investigation begun the evening before, or an examining court. Whatever it may be termed, they were investigating the facts and trying to ascertain the cause of the killing and how it occurred. The wife was suspected, and was under investigation. She was much depressed over the death of her husband, and when it was sought to bring her before the investigating court, the physicians advised against it as did her father. The court had her brought anyway, and she was informed by her father, and she understood that she was suspected of having shot her husband. She was brought by the officers under process before the court, or justice of the peace, and required to testify. There was no warning given her that what she might say might be used against her. Her statements were reduced to writing, and signed by her. We deem it unnecessary to go into a detailed statement of her evidence. Briefly, it may be' stated, she testified they went hunting, and when her husband got out of the buggy he took a gun, doubtless the rifle, and when he got ready to shoot at the rabbits, she put her fingers to her ears and shut her eyes, as she did not like to hear the discharge of the gun. She heard an explosion, looked, and saw her husband falling. She did not know how the matter occurred, but from the position of the shotgun in the buggy she supposed it had fallen or was jerked out by him, and, as it was cocked, it exploded, and the load of shot went into his back, his back being to the buggy at the time of the explosion. It was elicited from her that her husband had taken out a $5,000 insurance policy a month or two before his death. There are other details under rigid examination to try to fasten the guilt upon her as the cause of her husband’s death. While she was being examined the grand jury was in session in a room of the courthouse on the same floor, and was brought in and heard her testimony. When she finished testifying ' the grand jury retired to their room. Objection was urged to the introduction of her statement under the circumstances. The court erred in permitting this testimony. We hardly deem it necessary to go into a discussion of this matter as the authorities are numerous and all one vraf.

Since the case of Wood v. State, 22 Tex. App. 431, 3 S. W. 336, the rule has been followed that if, when a party is examined as a witness in proceedings before a magistrate or a coroner’s inquest, he is charged or suspected of the crime then under investigation, and is then aware that he is so charged or suspected, his testimony before the investigation cannot be received against him upon his trial for the same offense. That rule has been followed in all decisions bearing upon that question. If she had been warned, a different proposition might be presented, but she was not, and from that viewpoint this testimony cannot be used against her. Wood v. State, supra; Carter v. State, 37 Tex. 362; Nolen v. State, 8 Tex. App. 585; Nolen v. State, 9 Tex. App. 419; Myers v. State, 6 Tex. App. 1; Speer v. State, 4 Tex. App. 474; Gilder v. State, 35 Tex. Cr. R. 360, 33 S. W. 867; Twiggs v. State, 75 S. W. 531; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920; Simmons v. State, 184 S. W. 226; Dover v. State, 197 S. W. 192; Oliver v. State, 197 S. W. 185, and Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575.

It is contended by the state that her testimony was exculpatory. We hardly think this worthy of serious consideration. The state did not introduce it as exculpatory evidence, but it was introduced expressly as shown by the testimony to fix the culpability upon somebody, and especially upon appellant. It was used for that purpose, and introduced for that purpose. It placed her at the scene of the tragedy; it placed her in position where she could have used the gun, gave her an opportunity, and excludes the presence of everybody else except herself and the deceased.

It is contended by the state that, inasmuch as she testified, this would render the error of the court harmless, because she testified practically upon the witness stand as she did before the examining court. She makes one change, at least, in her testimony on the trial from her testimony before the examining court. Before the examining court she stated that he had the insurance policy about a month. On the trial she stated only a day or two, but the explanation she gave was this, that they had applied for it about a month or so before the killing, and had only received it a day or two before the killing. It is here stated that, when the state introduced this illegal testimony against appellant, over her objection, the fact that she went upon the stand to make an explanation or testify did not cure the error. It was that written statement introduced over her protest that caused her to take the stand during the trial and testify before the jury. A party does not waive errors of this- sort where they are committed over his protest by taking the stand or introducing evidence to lessen the consequences of it as far as may be done. The error of the court was not by this manner waived.

Again it is contended by the state that the court undertook to charge out its effect. This did not cure it.' The court cannot limit the effect of erroneous testimony by a charge.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I do not concur in all the statement of the case by Judge DAVIDSON’S opinion. However, it is wholly unnecessary for me to state the facts, except that appellant did not go on the stand to testify to explain her written sworn testimony before the examining court. On the contrary, she voluntarily took the stand and testified for herself in order to try to induce the jury to acquit her. But, whatever induced her to testify, her testimony on this trial was precisely, in substance, her testimony on the examining trial, with the sole exception of when the insurance policy was secured by deceased for her; and unquestionably, on this point, her evidence on this trial was worse for her than on the examining trial. So that undoubtedly the admission of her testimony at the examining trial was perfectly harmless, and to reverse this case because of its admission, even if error, is to substitute the shadow for the substance, and reverse on a wholly academic point neither authorized nor justified in law or justice. Undoubtedly the state can, on another trial, prove what she swore on this trial.

This case should have been affirmed, not reversed. 
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