
    PERRETT v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 21, 1914.)
    L. Witnesses (§ 393) — Impeachment—Contradictory Statement.
    A witness may be impeached by her statements before the grand jury, contradictory of her testimony at the trial.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    2. Criminal Law (§ 518) — Confessions—• Warning.
    A confession made by one in jail without the warning to him required by statute, not being a continuation of one made several days before on warning, but being an entirely different statement, containing many additional matters, is inadmissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1157-1162; Dec. Dig. § 518.]
    Appeal from District Court, Tarrant County; James W. S wayne, Judge.
    G. W. Perrett was convicted of rapé, and appeals.
    Reversed and remanded.
    Poulter & Johnson, of Pt. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted for rape on his own daughter, and his punishment assessed at 50 years’ confinement in the penitentiary.

Appellant objected to Joe McKinney, a boy seven years old, being permitted to testify.

We have carefully read the voir dire examination of this boy, and are of the opinion, the court did not err in permitting him to testify.

Neither was there error in permitting the witness Grace Perrett to be impeached by the testimony she gave before the grand jury. When this witness had testified in behalf of appellant to an entirely different state of facts to what she stated when before the-grand jury, the state, as affecting her credit as a witness, was properly permitted to show ■ what she had testified on the former occasion.

However, the first bill of exceptions presents an error that will necessitate a reversal of the case. It appears that appellant appeared before the assistant county attorney on January 28th, and after being warned, as the law requires, made a statement in which he admitted his guilt of the crime-charged. This statement was properly admitted in evidence. Three days later he-made another statement. This latter statement contains no warning of any character. In fact the assistant county attorney testifies that when this latter statement was made on January 31st he gave to appellant no warning, apparently relying on the warning he had theretofore given on January 28th. But this latter statement is not a continuation of the first, and is an entirely different statement, containing many additional matters, and matter of such an atrocious nature we can readily see why a jury who-heard it would inflict virtual life imprisonment in the penitentiary. And we can readily understand how a trial judge, considering, the nature of the case, and that appellant was mistreating his little daughter, should, feel that the jury should know all the facts. Vet he and this court are bound by the law as written by the Legislature. It is conceded that appellant was under arrest and in jail, and when he made the statement January 31st no warning was given, and the statement contains no allegation that any warning of any character was given at that time. If by any construction it could be held to be but a continuation of the statement January 28th, we would feel inclined to uphold the ruling of the trial judge in admitting it in evidence. But the language of the two statements, made at different times (three days apart), will bear no such construction. The first statement is shown to have been made in the presence of N. E. Cambell, J. M. Painter, and H. G. Musiclc, while when the latter was made, only Mr. Musick was present. The Legislature has provided that a statement of a defendant, while under arrest,. is not admissible against him, unless it be in writing, signed by him, and shall show that he was duly warned by the person to whom the confession was made that he did not have to make a statement, and that such statement could be used in evidence against bim. Tbis statute seems to provide that the written instrument in and of itself must show those facts, and tbis court bas so beld in Henzen v. State, 137 S. W. 1141, and in a number of cases since tbe rendition of that opinion.

Tbe record as presented to us contains no other error, but on account of admitting tbis unwarned statement, which was of a most damaging nature, tbe case is reversed and remanded.  