Aрpellant was convicted of violating the local option law, his punishment being assessed at a fine of $100 and thirty days imprisonment in the county jail.
The State’s evidence is, in substance, that the State witness Moore gave appellant two dollars with which to secure him a quart of whisky. Appellant took the money and went away, subsequently returning with a quart of whisky, which he gave Moore. Appellant denied selling Moore the whisky. He admitted, however, that he took the money, went off and bought the whisky ás an accommodation to Moore from a party named Woodward; brought the whisky back .and gave it to Moore. Appellant proved a good reputation. The State further proved that shortly before the transaction a consignment of whisky, which seems to have consisted of four bottles, had been made to appellant, which was received at the express office. It was also shown that Woodward received' one or more consignments of whisky, one in his own • name and one in the name of Fleming. Appellant testified that the whisky which was shipped to him or in his name was for Woodward as an accоmmodation to Woodward, who said he had been shipping in some whisky and did not want to attract attention, so he induced appellant to let him make this shipment in his name. Woodward did not testify on the trial. Without going into details, this is the substance of the ease.-
Several bills of exception were presented to the judge, which are marked by him refused. There is filed an affidavit madе by J. E. Shropshire, one of the attorneys for appellant, which was signed and sworn to on 27th of June, 1911. This affidavit is attached to and made a part’ of the motion of appellant’s attorneys, Shropshire & Brown, asking the court to consider five bills of exception, which were refused by the court. It is stated in the motion filed here for this purpose, that during the trial these bills were properly prepared and immediately after the trial of the case, and within two days, and before adjournment of court, presented to counsel for the State, who refused to read or act upon them. They were then presented to the
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court and the court would not act on the bills for some time, but finally marked all of them “refused.” The judge failed to file аny bills of his own in lieu of appellant’s tendered bills, and that as the matter was presented appellant was not required to resort to bystanders to prove up bills of exception. That he had done all in the matter that was required of him by law. That the court never suggested any errors or corrections in any of the bills, except bill No. 1, as first prepared. In regard to this bill he suggested the proceedings were not stated in the exact order in which they occurred, and the bill' was then prepared to meet the suggestion of the court; that he still refused to sign it after the corrections were made. It is stated further that the refused bills are fair and correctly present the matters as stated in the bills. In connection with this appellant moves that this court consider the bills under the authority of Exon v. State,
Under the authority of Exon v. State, supra, we are of opinion that appellant has brought himself within the rule laid down in that case, and is entitled to have his matters reviewed and the bills considered. It was not necessary, under the circumstances, for him to secure bills from the bystanders. The court refused to allow the bills and gave no reason for it and prepared none in lieu of them. Without commenting further upon the matter, we are of opinion under the authority cited that the bills should be and will be considered.
Bill of exceptions No. 1, in substance, shows that after the alleged sale, and perhaps the same evening, the officer took appellаnt before what is termed “the court of inquiry,” and had him to testify under oath, that appellant is a negro and the alleged purchaser a white man, that the marshal of the town took appellant before Lyle, the justice of the peace; he was sworn, and required to testify to a lot of matters which were used against him upon the trial. Quite a number of objections wеre urged to this conduct, and among others, that he was under arrest and restraint, and the matters were not reduced tó writing as required by the statute. It was not a voluntary statement .made before an examining trial, for this was a court of *487 inquiry only; that appellant was not warned as required by the statute, and because the evidence was calculated to injure him before the jury, and it was incompetent, irrelevant and immaterial. At this juncture the court retired the jury to consider the question as to whether or not he would admit the testimony. It developed during this examination as testified by defendant: That in the evening after he had delivered the bottle of whisky to Moore, Paul Sheridan, the city marshal, rode up to defendant near the south courthouse gate оn the public square and accosted defendant in substantially the following language: “Jim, I have been looking for you all evening. Go on into the courthouse there, they want you.” That Mr. Sheridan then got off his horse and went with defendant into the office of hi. G. Lyle, justice of the peace, and there in the presence of C. 0. House, the county attorney, H. G. Lyle, justice of the peace, Paul Sheridan, the city marshal, Oscar Latta, deputy sheriff, and Jim Anderson, deputy marshal, began to question defendant concerning the procuring of said whisky and the sale of same. That at said time the said 1ST. G. Lyle, justice of the peace, remarked to defendant that he would put defendant in jail and keep him there as long as he wanted to. That about that timе defendant proposed to said officers to give them information and to show them where he had gotten the whisky if someone of them would go with him and let him purchase another bottle of whisky, and then and there in that connection the defendant offered to divulge the name of the party who sold the whisky if the officers would give him a chance. That at that juncture the said Pаul Sheridan ordered defendant to shut his mouth, refused to go with him, and told defendant he had to tell it then. That immediately after he made his statement in said court of inquiry the said Paul Sheridan placed handcuffs upon defendant’s hands and took him and placed him in jail, and locked him up. That from and after the time that Mr. Sheridan first accosted defendant near the south gate of the courthouse yard, as aforesaid, the defendant thought and believed that he was continuously under arrest, until he was placed in jail, and thought and believed that he was under arrest at the time he was asked said questions and made said statements in said court of inquiry. That at the time he was required to answer said questions and make said statements in said inquiry court he was sworn and was required to make said statements under oath, that he did not think he was warned that he did not have to make any statement at all, etc.
Thereupon the State introduced the said Paul Sheridan, who testified that at the time he met the defendant near the south gate of the court yard, that he told defendant that he had a subpoena for him to go into the office of E". G. Lyle, and that he, Sheridаn, accompanied the defendant into the said office and stayed there with him during the examination of defendant in said inquiry court, and after said examination got a warrant for the arrest of the defendant *488 and. took him and handcuffed him and carried him to jail. That he handcuffed him because he did not want him to get away, and did not want to have to hurt him or kill him. That he had known the defendant a good while, but had never known of his doing any violence or trying to escape, but handcuffed him because he did not want to take any chances. That after the court of inquiry was over he kept the defendant in the sheriff’s office for about three quarters of an hour before he took him to jail.
At this juncture the jury were brought back into court and resumed their plaсes in the jury box. Defendant was placed on the witness stand and compelled to testify before the jury that he had testified in said court of inquiry before E". G. Lyle, justice of the peace, on the occasion aforesaid, that he did not know the name of the negro from -whom he purchased the whisky, and was made to further admit that said testimony so given before El G. Lyle was falsе, and was compelled to testify before the jury that he had sworn falsely about such matter on said occasion. To the introduction of all of which evidence appellant urged his exceptions. This action on the part of the court was clearly erroneous under all the authorities so far as we are aware. Appellant could not be made to give evidence against himself as guaranteed by the Bill of Bights, article 1, section 10, of the Constitution. See Acts of 1907, amendatory of article 790 of the Code of Criminal Procedure; Wood v. State, 22 Texas Crim. App., 431; Calloway v. State,
There aré some matters reserved in other bills, but in view of the disposition of the case we will not discuss them further than to say we trust upon another trial that in the argument counsel for the prosecution will be more guarded in their remarks.
The judgment is reversed and the cause is remanded.
Reversed and remanded.