The opinion
PRENDERGAST, Judge
(dissenting). — Appellant and Mack Parnell were jointly indicted for the theft of a cow belonging to Bobert Finch. In the same indictment Bob Epperson was charged as an accomplice of said Oliver and Parnell in the theft of said cow, and Epperson was also charged therein with aiding said parties in evading arrest for the theft of said cow. And also he was charged with receiving from said parties and concealing said cow knowing that she was stolen. A severance was had and appellant, Oliver, was first to be placed on trial, Epperson next and Parnell last.
The proof, without any conflict or contradiction, showed that on the night of April 29, 1915, said Finch’s cow was stolen out of his little pasture near his residence about one mile from the town of DeKalb. The tracks of two persons and those of the cow showed that she was roped in the pasture and taken out of it and in a circuitous route by said two parties, driven with the rope on her, to DeKalb and was butchered that night, and next day said Epperson shipped the hide of this cow by express to a hide company in Texarkana. Finch with others went to this hide house in Texarkana, found the hide of his cow, thoroughly identified it, and it was shipped back by express to DeKalb. What became of it before this trial is not disclosed.. There can he no question from the testimony but that said Finch’s cow was stolen on said occasion and that said three persons, appellant, Parnell and Epperson, were the guilty parties.
In October following the grand jury investigated this theft. Appellant was a witness and testified before the grand jury about it. The State on this trial offered to prove what he testified at the time, and he claimed in his objections that his testimony was a confession and not being in writing was inadmissible. When this question came up the judge retired the jury and out of their hearing fully investigated this question. Mot only the grand juror who was introduced for the purpose of' proving what appellant swore before the grand jury testified fully on the point, but also the district attorney, appellant’s attor
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ney and some of the officers also testified. The bill presenting this question is very lengthy, some thirteen typewritten pages. It reproduces in question and answer form the testimony of these witnesses heard by the judge and all that then occurred. It is unnecessary to reproduce the whole bill. I .will state the substance of what it shows.
When the grand jury began this investigation they learned that appellant and said Parnell were important witnesses. Evidently the grand jury must have thought that Epperson was the really guilty party and their investigation was directed toward him. Late one evening the grand jury issued an attachment for appellant and Parnell as witnesses to appear before them next day. They had some difficulty in procuring an officer to execute this attachment. However, they succeeded that night and some officers or persons for them went to DeKalb and attached these two witnesses at night. They returned with them about 4 o’clock the next morning and took them to the jail to turn, over to the officer there to be held to appear before the grand jury the next morning. The grand jury reconvened and continued this investigation the next morning about 8:30 o’clock. These two witnesses were taken over to the grand jury. Parnell first went into the grand jury and testified; appellant knew it. He waited in the clerk’s office until Parnell got through. He then specially desired to also testify before the grand jury and so informed the grand jury. Thereupon he was introduced as a witness and testified before the grand jury. His testimony was voluntary and was after a full and complete warning that he might be implicated and that his testimony could be used against and not for him. With all this knowledge he persisted in his desire to testify and the grand jury thereupon let him testify. His testimony was not a confession; not treated or thought of as such. It was just like the testimony of any other witness before the grand jury. He was not under arrest at the time charged with this or any other offense. He was merely an attached witness. After hearing all this testimony, in the absence of the jury, the court held properly that he was not under arrest; that his testimony before the grand jury was admissible against him, and thereupon had the jury returned and permitted the grand jnror Crump to reproduce his testimony before the grand jury. His testimony before the grand jury, as sworn to by this grand juror was to the effect that late the evening before the cow was taken that night Epperson told him and Parnell to go and get a cow at Finch’s that night, which they did. He briefly told where and how they took her from Finch’s pasture to Epperson’s butcher pen and butchered her and that Epperson had the meat taken to his butcher shop early next morning, and that Epperson paid him and Parnell each $8 for going and getting the cow.
The evidence further developed that appellant was merely a hired hand for Epperson and worked for him as such. His testimony before the grand jury was an attempt by him to exonerate himself as to theft;
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that he was merely acting as a hired hand and was working for Epperson and under him and simply executed his orders and that was all.
His testimony before the grand jury, as stated, was not a confession; not so intended by him or by the prosecuting officer or the grand jury, but was merely his testimony in an attempt to exonerate himself from any criminal liability. Hence our confession statute had no application as correctly held by the trial judge. His testimony before the grand jury could be proven against him legally just the same as if he had testified on a previous trial or an examining trial when he should fail to again testify when on a second or any other trial. He did not testify on this trial. He offered no testimony whatever.
None of the cases cited by the majority opinion are in point. No one questions the law that when a confession as such is attempted to he proven against an accused it must be in writing after due warning and conform to our statute on the subject. The decisions cited merely show this and in addition that when an accused is before the grand jury or a case against him is under investigation and he is not informed thereof and not warned then his testimony under such circumstances would not be admissible against him. , But if he is warned, knows the facts and still wants to testify voluntarily and does so, then his testimony is admissible against him. That was this case and his testimony was not a confession, not thought of as such when he was testifying before the grand jury, and I think was clearly admissible.
This judgment should have been affirmed, not reversed. I respectfully dissent.