The opinion
HARPER, Judge
(dissenting).—In this case is presented the question: What must the confession show on its face, under article 790 of the Code of Criminal Procedure, as amended by the Act of the Thirtieth Legislature, which is as follows:
“Art. 790. The confession shall not be used if at the time it was made the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary
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statement of the accused taken before an examining court in accordance with law, or be made in writing or signed by him, which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made, or unless in connection with said confession he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed; provided, that where the defendant is unable to write his name and sign the statement by making his mark, such statement shall hot be admitted in evidence unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”
Under this article in the case of Jenkins v. State, 60 Texas Crim. Rep., 236 , 131 S. W. Rep., 643 , a majority of the court held that not only must the instrument be in writing and show that he was warned, first, that he does not have to make any statement at all; second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is made, but that the written instrument must also show the name of the person giving the warning, and must contain the words that “the confession was made to such person,” and in terms overruled the cases of Knight v. State, 55 Texas Crim. Rep., 243 ; Knuckles v. State, 55 Texas Crim. Rep., 6 ; also construing the cases of Robertson v. State, 54 Texas Crim. Rep., 21 , and Young v. State, 54 Texas Crim. Rep., 417 . The opinion of the majority of the court hold in this case the law to be as laid down in the Jenkins case.
Judge Ramsey, in an able dissenting opinion in the Jenkins case, supra, adheres to the construction announced in the Knight and Knuckles cases, supra, and also construes the Robertson and Young cases. As the writer of the opinion in the Robertson case, 54 Texas Crim. Rep., 21 , he holds that there is no conflict between it and the Knuckles and Knight cases, and he intended no such construction as is now given to that case by a majority of the court. The judge who wrote the opinion in the Young case (Judge Brooks) is also the author of the opinion in the later cases of Knuckles and Knight, and in the dissenting opinion it is shown there is no conflict between them.
After reading all those cases, and the article of the Code, taking into consideration the evil intended to be remedied, I believe the opinion of the majority of the court in the Jenkins case is wrong, and that the construction given the statute in the Robertson, Knuckles and Knight cases to be correct.
What were the conditions intended to be remedied? Prior to the enactment of this statute, a person might orally testify that he had
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given to a defendant a statutory warning, and then detail a confession. The Legislature, recognizing the frailty of men’s memory, thought it best not to place this confession in the memory of man, but to require that it be reduced to writing and signed by the person making the confession. It was never intended to add, and the Legislature did not add one single thing to the essentials to render a confession admissible. It only required that those things rendering a "confession admissible, and the confession should not be entrusted to man’s memory, but should be reduced to writing so that there could be no mistake and no imposition. While intending to protect the right of every person accused of crime, and to so arrange matters that it should be shown that a person charged with an offense had been given the statutory warning, and that the confession was in fact and in truth his confession, or statement of the matter, it, I do- not think, ever intended to place about confessions technical rules to defeat the ends of. justice. It only intended to pass a law that no injustice could be done to a person accused of crime. If the confession shows that a defendant was informed and knew that he did not have to make a confession, and also knew that such confession could be used against him, and not for him, if in moments of remorse he made a statement, it was never intended to exclude it, but only that it be preserved in. writing, and used against him only in the language he made it. From a careful study of the Act, I can not construe from its language any other intention or purpose in the minds of the Legislature, and to give to it the technical construction that is given to it in the Jenkins case and in this case, I think is contrary to the language of the statute, and the intention qf the Legislature, enacting it. It was not intended to prevent justice, but was intended to further the ends of justice—to see that an accused person was not imposed upon, and a construction, by the narrator, given to language not intended by the person making the confession, or a confession admitted that was not voluntarily made. Yet, while protecting all the rights of defendant, it was never intended for its language to be so construed as to prevent the admissibility of a statement voluntarily made by a person accused of crime when duly warned, when that statement had been reduced to writing. If the statement shows that it was voluntarily made after receiving the statutory warning, and the confession ■ is in writing and signed by the defendant, this, I think, is all the statute requires. When the statement or confession has been reduced to writing, and the written instrument shows that he has been given the warning, first, that he does not have to make any statement at all; second, that the statement may be used in evidence against him on his trial for the offense concerning which the confession is therein made, and such person has signed such a statement, the requirements of the law have been met, and to hold that the written instrument must contain more is but a play upon words.
This statute is so fully discussed in the opinions herein referred
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to, I do not deem it necessary to further discuss it, and I write this my protest against the construction given by a majority of the court to make it of record, for in the future, while not agreeing to it, yet I shall follow the construction of the majority, deeming it more essential that the law shall be settled and understood by the trial judges and the legal profession than that the opinion of any one member, even if correct, in the construction of a statute relating to procedure, should prevail. It follows, that in my opinion the judgment should be affirmed.