Brez v. State

39 Tex. 95

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, P. J.

We think that Section 8 of the Bill of Bights of our Constitution, which secures to every person accused of an offense the right, upon his trial, to be confronted with the witnesses against him, has been violated in this case.

Upon the trial the court, against the objections of the defendant, permitted a certificate of a justice of the peace, before whom a preliminary examination was had, to the effect that defendant made a confession of guilt, to be read in evidence to the jury, without producing the magistrate upon the stand; thus depriving the defendant of the right of a cross-examination in regard to any matter stated in the certificate of confession, or to elicit any matters of explanation from the person whose state-' ment was being used against him.

This is in direct violation of the letter and spirit of our Constitution, and law of the State (Art. 249, Paschal’s Digest), and one of the fundamental principles of a free government. This error is fatal to the judgment of conviction, and will entitle the appellant to a new trial.

The court further erred in its ruling in regard to the cross-examination of B. Martin. The confessions of appellant could not be used against him, if made under the influence of persuasion or promise of favor, nor even when induced by a promise that he should not be prosecuted. (Paschal’s Digest, 3126.) The object of the question ruled out by the court was to elicit the fact that defendant had been promised that if he would confess he should not be prosecuted, and we think the question legitimate" and proper and should have been answered.

When an accused in making a confession, discloses certain facts which demonstrate the truth of the confession, such as the locality of stolen goods, or the place where certain instruments are secreted, with which the accused states that he committed the offense, then, under the statute, his statement may be given in evidence, notwithstanding any persuasion or promise of favor, but still the fact that the defendant had been persuaded to make the statement, would be proper evidence for the jury to consider.

For the reasons given the judgment is reversed and the cause remanded.

Reversed and remanded.