If, in response to the warning he had signified a desire to remain silent, and the state had forced from him such statement, under Art. 694 such statement could not be used on his trial, not being voluntary. Distinguishing Wisdom v. State, 42 Tex.Crim. Rep., and Grimsinger v. State, 44 Tex. Crim. 1. Appeal from the District Court of Nolan County. Tried below before the Hon. W. P. Leslie, Judge.
Rep., 61 S.W. 926; Grimsinger v. State, 44 Tex.Crim. Rep., 69 S.W. 583. The statutes relating to extra-judicial confessions do not relate to the testimony of a witness given at a former trial or testimony voluntarily given before a grand jury or examining trial after being duly warned.
This is proper. Grimsinger v. State, 44 Tex.Crim. R., 69 S.W. 583. Finding no reversible error, the judgment of the trial court is affirmed.
The original opinion properly discusses the law, with appropriate authorities. As additional authority for the conclusion reached, we refer to Bass v. State, 127 S.W. 1020; Coffman v. State, 103 S.W. 1128; and Grimsinger v. State, 69 S.W. 583. Appellant's motion for rehearing is overruled.
One is a principal who, having advised or agreed to the commission of an offense, is present when it is committed, whether he then aids or not. Article 78, P. C. It is not necessary, in order to make one 'present' within the meaning of this statute, that he be in immediate contact with the other actors. Bass v. State, 59 Tex. Crim. 186, 127 S.W. 1020 (appellant about 100 yards away); Coffman v. State, 51 Tex.Crim. Rep., 103 S.W. 1128 (in the immediate vicinity); Grimsinger v. State, 44 Tex. Crim. 1, 69 S.W. 583 (in woodshed, killing occurring in residence); Mason v. State, 32 Tex.Crim. Rep., 22 S.W. 144, 408 (in neighborhood). American English Ency. of Law defines 'present' as 'being in view or immediately at hand.
One is a principal who, having advised or agreed to the commission of an offense, is present when it is committed, whether he then aids or not. Article 78, P. C. It is not necessary, in order to make one 'present' within the meaning of this statute, that he be in immediate contact with the other actors. Bass v. State, 59 Tex. Crim. 186, 127 S.W. 1020 (appellant about 100 yards away); Coffman v. State, 51 Tex.Crim. Rep., 103 S.W. 1128 (in the immediate vicinity); Grimsinger v. State, 44 Tex. Crim. 1, 69 S.W. 583 (in woodshed, killing occurring in residence); Mason v. State, 32 Tex. Crim. 95, 22 S.W. 144, 408 (in neighborhood). American English Ency. of Law defines 'present' as 'being in view or immediately at hand.
The charge on principals is in the language of the statute and a charge in the language of the statute is correct where the evidence supports the theory presented. Branch's P. C., sec. 686; Grimsinger v. State, 44 Tex. Crim. 1, 69 S.W. 583; Slain v. State, 145 S.W. 367; Espinoza v. State, 165 S.W. 214. Appellant also objects to paragraph 3 of the court's charge defining the word "transport" as follows:
The inquiry is: Was the confession made under the conditions and with the formalities required by statute to make admissible a confession when the accused is under arrest? Branch's Digest, sec. 227, and cases cited; Thomas v. State, 35 Tex. Crim. 178; Grimsinger v. State, 44 Tex. Crim. 1. Formerly the statutory requisites only required that the confession be voluntarily made after due warning. As amended by the Act of 1907, page 219, the statute requires that the things above, and in addition thereto that the confession be in writing and signed by the accused.
Rep.; Wisdom v. State, 42 Tex.Crim. Rep.; Grimsinger v. State, 44 Tex. Crim. 1. The statutes relating to extra-judicial confessions do not relate to the testimony of a witness given at a former trial, or testimony voluntarily given before a grand jury or examining trial after being duly warned. 4.
Rolston Ward, for appellant. — On question of admitting defendant's confession: Gutgesell v. State, 43 S.W. Rep., 1016; Christian v. State, 51 S.W. Rep., 903; Grimsinger v. State, 44 Tex. Crim. 1, 69 S.W. Rep., 583; Twiggs v. State, 75 S.W. Rep., 531; McIlwaine's Pocket Digest, article 790. John A. Mobley, Assistant Attorney-General, for the State.