DAVIDSON, Judge.
The conviction is for the robbery of Oran Wilson, Jr., by assault and by putting him in fear of life and bodily injury; the punishment, confinement in the State penitentiary for 99 years.
Oran Wilson, Jr., and Miss Westmoreland, college students, ages 19 and 18 years, respectively, were, on the night of September 28th, 1941, at about one o’clock A. M., seated in Wilson’s Buick automobile, parked by the side of a road in the suburbs or sparsely settled section of the City of Lubbock, when, according to their testimony, a negro man, partially disguised by a handkerchief about his face, approached the qar and' ordered them to “Come out, I want your car.” The
order was complied with, whereupon Wilson was robbed of $2.48, which he had on his person. He said that he delivered the money because of the threat of the negro to kill them and because he saw, in the negro’s hand, what he thought was a pistol. After the robbery was effected, the parties were ordered to get back into the car, and, as Wilson was so doing, he was struck on the head with a hammer. Wilson fought back, and, in the fight that ensued, he was cut and stabbed with a pocket knife, the blade of which was broken off in his breast. While the fight was going on, Miss Westmoreland tried, to start the car, but was unable to do so because the keys thereto had been removed from the ignition switch. She then fled, whereupon the robber pursued her; she outran him and escaped to a house in the vicinity, where she reported the crime, and from which the officers were notified. While the robber was chasing Miss Westmoreland, Wilson made his escape in another direction. He reached a house, where he, too, reported the crime, and officers were notified.
As Wilson was fleeing, he saw what is referred to as a “ ’33 model Plymouth sedan,” parked nearby.
As a result of the reports, four officers of the City of Lubbock answered the call and began an investigation. They found .where the car described by Wilson had been parked; they found a puddle of blood where someone had stood by the car; they were able to determine the character of tracks made by the tires of the car. With this information, the officers began a systematic search of the city for a car corresponding to the description given by Wilson, and later found such a car near where appellant lived; they were particularly attracted by the appearance of blood on the front bumper. The officers, upon discovery, went to the appellant’s house, awakened him, and told him that they wanted to talk with him. He invited them into his house, whereupon he was interrogated relative to the blood on his car, which he explained by saying that it was from his leg which he had skinned on a bicycle. His leg showed that it was cut. As a result of a search of his room, the officers found bloody clothing “wrapped in a paper and crammed behind the water heater,” among which clothing was a pair of trousers with a cut place corresponding with the cut found on appellant’s leg. Appellant admitted to the officers his ownership of the Plymouth car. He was arrested and carried to the city jail. The next morning, a hammer and the keys to the Wilson car
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were found near where the Plymouth car had been parked. A handle of a knife with a blade broken or missing was found about a block from the car and at a point between where the Wilson car and the Plymouth car had been parked. There was evidence sufficient to show that the hammer and knife were of the same general description as those kept on the premises where appellant was employed, and to which he had access.
Both Wilson and Miss Westmoreland, while testifying in behalf of the State, identified appellant as the robber.
The appellant did not testify as a witness in his own behalf.
The facts abundantly support and authorize the jury’s conclusion of guilt.
Miss Westmoreland’s identification of appellant was made under the following circumstances: After appellant had been arrested, she was carried to the city jail with a view of having her to determine whether or not she could identify him as the robber. She was unable to do so without hearing his voice. She instructed the officers to have the appellant repeat or say certain words. The record does not reflect what those words were, other than that they were “curse” words. The action of the officers in requiring appellant to repeat the words in the presence and hearing of the witness, under the circumstances mentioned, and the identification based thereon, is claimed by appellant to constitute reversible error. The bill of exception presenting this question reads as follows:
“be it remembered that upon the trial of the above entitled and numbered cause the state adduced the following testimony from the witness Yvonne Westmoreland, over the objections of the defendant.
“ ‘That on the morning after the robbery she was called to the City Jail by the officers, to look at the defendant and hear him talk; that she told the officers what to have the defendant say, and the defendant was required to say the things the officers were instructed to have him say by the witness, and that the witness was in custody of the officers that required the defendant to say the things the witness requested, and from his general appearance, build and voice, the defendant was the one who committed the robbery.’ ”
The objection to the testimony was of a general nature, but was sufficient to raise, the question of a violation of the mandate of the Constitution of the State of Texas prohibiting self-incrimination of one accused of crime. The trial court’s un- ■ qualified approval of this bill of exception constitutes a certificate by him to the effect that, while the appellant was under arrest and in jail, he was “required,” by the officers having him in custody, to say certain words, in the presence and hearing of the witness, as a result of which the witness was enabled to testify that he was the robber. The bill of exception does not reflect — nor does it otherwise appear from the record — how or in what manner — whether by force, threats or violence — appellant was required by the officers to say the words the witness instructed them to have him say. The idea that what was said was voluntary on the part of the appellant is, however, expressly excluded.
The admissibility of the testimony here presented involves two cardinal principles of law, viz.: (a) whether there is' shown á violation of the provision of Art. I, Sec. 10, of the Constitution of the State of Texas, which prohibits self-incrimination; (b) whether there is shown a violation of Art. 727, C. C. P., which prohibits the use of an oral confession against one accused of crime, made while under arrest or while confined in jail.
Under the limited objection made to the introduction of this testimony, it is doubtful if the confession feature is properly before us. If such enters into the determination of the constitutional question, it is only by reason of the fact that the statutory right preserved to one accused of crime is of the same general nature.
The pertinent provision of Art. I, Sec. 10, of the Constitution of the State of Texas reads as follows:
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DAVIDSON, Judge.
The conviction is for the robbery of Oran Wilson, Jr., by assault and by putting him in fear of life and bodily injury; the punishment, confinement in the State penitentiary for 99 years.
Oran Wilson, Jr., and Miss Westmoreland, college students, ages 19 and 18 years, respectively, were, on the night of September 28th, 1941, at about one o’clock A. M., seated in Wilson’s Buick automobile, parked by the side of a road in the suburbs or sparsely settled section of the City of Lubbock, when, according to their testimony, a negro man, partially disguised by a handkerchief about his face, approached the qar and' ordered them to “Come out, I want your car.” The
order was complied with, whereupon Wilson was robbed of $2.48, which he had on his person. He said that he delivered the money because of the threat of the negro to kill them and because he saw, in the negro’s hand, what he thought was a pistol. After the robbery was effected, the parties were ordered to get back into the car, and, as Wilson was so doing, he was struck on the head with a hammer. Wilson fought back, and, in the fight that ensued, he was cut and stabbed with a pocket knife, the blade of which was broken off in his breast. While the fight was going on, Miss Westmoreland tried, to start the car, but was unable to do so because the keys thereto had been removed from the ignition switch. She then fled, whereupon the robber pursued her; she outran him and escaped to a house in the vicinity, where she reported the crime, and from which the officers were notified. While the robber was chasing Miss Westmoreland, Wilson made his escape in another direction. He reached a house, where he, too, reported the crime, and officers were notified.
As Wilson was fleeing, he saw what is referred to as a “ ’33 model Plymouth sedan,” parked nearby.
As a result of the reports, four officers of the City of Lubbock answered the call and began an investigation. They found .where the car described by Wilson had been parked; they found a puddle of blood where someone had stood by the car; they were able to determine the character of tracks made by the tires of the car. With this information, the officers began a systematic search of the city for a car corresponding to the description given by Wilson, and later found such a car near where appellant lived; they were particularly attracted by the appearance of blood on the front bumper. The officers, upon discovery, went to the appellant’s house, awakened him, and told him that they wanted to talk with him. He invited them into his house, whereupon he was interrogated relative to the blood on his car, which he explained by saying that it was from his leg which he had skinned on a bicycle. His leg showed that it was cut. As a result of a search of his room, the officers found bloody clothing “wrapped in a paper and crammed behind the water heater,” among which clothing was a pair of trousers with a cut place corresponding with the cut found on appellant’s leg. Appellant admitted to the officers his ownership of the Plymouth car. He was arrested and carried to the city jail. The next morning, a hammer and the keys to the Wilson car
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were found near where the Plymouth car had been parked. A handle of a knife with a blade broken or missing was found about a block from the car and at a point between where the Wilson car and the Plymouth car had been parked. There was evidence sufficient to show that the hammer and knife were of the same general description as those kept on the premises where appellant was employed, and to which he had access.
Both Wilson and Miss Westmoreland, while testifying in behalf of the State, identified appellant as the robber.
The appellant did not testify as a witness in his own behalf.
The facts abundantly support and authorize the jury’s conclusion of guilt.
Miss Westmoreland’s identification of appellant was made under the following circumstances: After appellant had been arrested, she was carried to the city jail with a view of having her to determine whether or not she could identify him as the robber. She was unable to do so without hearing his voice. She instructed the officers to have the appellant repeat or say certain words. The record does not reflect what those words were, other than that they were “curse” words. The action of the officers in requiring appellant to repeat the words in the presence and hearing of the witness, under the circumstances mentioned, and the identification based thereon, is claimed by appellant to constitute reversible error. The bill of exception presenting this question reads as follows:
“be it remembered that upon the trial of the above entitled and numbered cause the state adduced the following testimony from the witness Yvonne Westmoreland, over the objections of the defendant.
“ ‘That on the morning after the robbery she was called to the City Jail by the officers, to look at the defendant and hear him talk; that she told the officers what to have the defendant say, and the defendant was required to say the things the officers were instructed to have him say by the witness, and that the witness was in custody of the officers that required the defendant to say the things the witness requested, and from his general appearance, build and voice, the defendant was the one who committed the robbery.’ ”
The objection to the testimony was of a general nature, but was sufficient to raise, the question of a violation of the mandate of the Constitution of the State of Texas prohibiting self-incrimination of one accused of crime. The trial court’s un- ■ qualified approval of this bill of exception constitutes a certificate by him to the effect that, while the appellant was under arrest and in jail, he was “required,” by the officers having him in custody, to say certain words, in the presence and hearing of the witness, as a result of which the witness was enabled to testify that he was the robber. The bill of exception does not reflect — nor does it otherwise appear from the record — how or in what manner — whether by force, threats or violence — appellant was required by the officers to say the words the witness instructed them to have him say. The idea that what was said was voluntary on the part of the appellant is, however, expressly excluded.
The admissibility of the testimony here presented involves two cardinal principles of law, viz.: (a) whether there is' shown á violation of the provision of Art. I, Sec. 10, of the Constitution of the State of Texas, which prohibits self-incrimination; (b) whether there is shown a violation of Art. 727, C. C. P., which prohibits the use of an oral confession against one accused of crime, made while under arrest or while confined in jail.
Under the limited objection made to the introduction of this testimony, it is doubtful if the confession feature is properly before us. If such enters into the determination of the constitutional question, it is only by reason of the fact that the statutory right preserved to one accused of crime is of the same general nature.
The pertinent provision of Art. I, Sec. 10, of the Constitution of the State of Texas reads as follows:
“In all criminal prosecutions the accused — — — — — — — — — — — — shall not be compelled to give evidence against himself, — — — — — — While this constitutional provision prohibits compelling an accused to give evidence against himself, its application is in no wise limited strictly to the giving of such evidence upon the trial of the case. To the contrary^ the inhibition extends
and applies whenever one is under arrest for a violation of the law or is being held by the authorities investigating a charge against him. It stands as a guarantee to everyone of the right to refrain from giving testimony which will tend to reveal his criminal connection with an offense denounced by law. 44 Tex. Jur., Sec. 25.
In the instant case, the identity of the appellant as the robber was necessary to the establishment of the State’s case. One of the witnesses present at the scene of the crime was unable to make that identification until she not only heard appellant’s voice but heard him utter certain words, which he was required to repeat in her presence while under arrest and while confined in jail. After the appellant had repeated the words, the witness was, by reason thereof, able to identify him as the robber.
Do such facts show that the appellant was compelled to give evidence against himself in violation of the constitutional provision mentioned?
Much has been said by this court touching the question of what constitutes self-incrimination within the meaning of the constitutional provision, and apparent conflicts appear. The various holdings are based upon, and, of necessity, arise by, what are construed to be, exceptions to the application of the constitutional inhibition. Among those exceptions are, what are known as the “footprint” cases, wherein identification was established by a comparison of footprints (Walker v. State, 7 Tex. App. 245; Pitts v. State, 60 Tex. Cr. R. 524, 132 S. W. 801; Hampton v. State, 78 Tex. Cr. R. 639, 183 S. W. 887; Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463; Lunsford v. State, 80 Tex. Cr. R. 413, 190 S. W. 157; Johnson v. State, 238 S. W. 933, 91 Tex. Cr. R. 291; Landry v. State, 35 S. W. (2d) 433, 117 Tex. Cr. R. 396) ; also, the “fingerprint” cases, to the same effect (Mc-Garry v. State, 82 Tex. Cr. R. 597, 200 S. W. 527; and Conners v. State, 134 Tex. Cr. R. 278, 115 S. W. (2d) 681), wherein the accused was required to give his fingerprints; also, cases involving identification by personal appearance or physical examination (Land v. State, 34 Tex. Cr. R. 330, 30 S. W. 788; Bruce v. State, 31 Tex. Cr. R. 590, 21 S. W. 681; Thompson v. State, 90 Tex. Cr. R. 15, 234 S. W. 401; Rutherford v. State, 135 Tex. Cr. R. 530, 121 S. W. (2d) 342; and Ash v. State, 139 Tex. Cr. R. 420, 141 S. W. (2d) 341.
The basic and underlying principle upon which these exceptions to the application of the constitutional inhibition mentioned are founded lies in the fact that the evidence there involved was not produced by the accused, that is, by the independent act or volition of the accused, but was produced by, and was the result of, the acts of the officers or others. It follows, therefore, in the instant case, that, unless the evidence here complained of was admissible as an exception, that is, as having been produced by the officers as distinguished from having been produced by the accused, it comes within the constitutional inhibition mentioned. The determining factor in this case is whether the evidence which incriminates the accused was produced by him or by the officers.
While not expressly so stated in the opinion, the application of the principle stated controlled in the dispostion made in the case of Apodaca v. State, 146 S. W. (2d) 381, 140 Tex. Cr. R. 593. There the accused was compelled to do and to perform certain acts in the presence of, and required of him by, the officers who had him under arrest and in custody, as a result of which they were enabled to determine the incriminative fact of his intoxication. The acts there required to be done and performed were personal to the accused, requiring the exercise of his volition. Under such a state of facts, this court held that the evidence so produced was in violation of the constitutional provision mentioned.
No legal distinction is perceived between the Apodaca case, supra, and the instant case. Here the accused was required to produce the evidence by which his identity was established by the witness, and without which his identity was unknown to the witness.
The holding in the case of Ash v. State, supra, is not at variance with the Apodaca case, supra, nor with the instant case. The disposition there made turned not upon whether the accused was required to produce evidence against himself, but was based upon the well established rule that, the officers having the accused lawfully under arrest, such arrest carried the right of search, and the evidence so found or produced was the result of that search.
From what has been said, it follows that Miss Westmoreland’s identification of the appellant as the robber was based
upon evidence produced by the appellant, under the circumstances mentioned, and was obtained in such a manner as to bring it within the constitutional provision prohibiting self-incrimination.
The bills of exception complaining of the receipt in evidence of the result of a search of appellant’s premises show that the officers had the permission or consent of the appellant to make the search. Error is, therefore, not reflected thereby.
The other matters appearing will not likely arise upon another trial and, therefore, are not discussed.
For the reason assigned, the judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.