*1 Moore, 570, quote We from 141 Tex. Cr. R. 150 S. W. 91, follows: page 529, Jurisprudence, “In ‘The term 21 Texas it is said: right “highway” public denotes road over which travel, distinguished way persons, from which some following public generally, may but not the use.’ We take 560, Phrases, Edition, from 19 ‘The Permanent Words road, “highway” imports term is in law the use of which ” public.’ rehearing The motion for is overruled.
Connor C. Elliott v. State. No. May 24049. 1948. Reinstated June 1948. Appeal Rehearing Motion October Denied *2 Presiding. Judge Ferguson,
Hon. Thos. C. Saba, McCol- Crump, Newman cund and San Senterfitt lum, Brady, appellant. for Mason, Attorney, and Ernest Runge, S. District Roscoe Attorney, Austin, for the State. Goens, BEAUCHAMP, Judge. charge of cattle theft appellant convicted on a penitentiary punishment at confinement in the State assessed years. a term of two
for entry merely and is appeal a docket The notice of properly in the min- entered record to have been shown jurisdic- Consequently, this Court has trial court. utes of the of the case. tion appeal dismissed. is APPEAL. TO REINSTATE
ON MOTION Judge. DAVIDSON, appeal properly entered appearing
It now that notice of court, appeal reinstated. trial in the Matthews, buyer, auction sale San. an a cattle attended cattle, which County. head of He saw seven there Saba being belonged Gray, and in the offered sale turn, who, Gray, name Matthews contacted Dietz, representative Associ- of the Cattle Raisers contacted having Gray stolen ation. identified the cáttle representative of Hodges, the Cat- from him. Dietz and another Association, appellant tle relative to his Raisers then contacted possession openly accused him of the sale of the cattle theft thereof. admitted
Dietz and them testified that that he had if he stolen the then asked cattle. confession, appellant replied wanted to make a which affirmative. county attorney. took to the office of the *3 county gave attorney warning The statutory the re-
garding arrest, confessions under took a made while state- statement, ment from completing Before he, county first, lawyer. lant decided that wanted to a see attorney complete advised tak- would not he ing statement, request. in the face of such Appellant was delivered into sheriff placed jail. in Upon case, appellant the trial of the claimed that cattle alleged to belonged him; stolen been cattle to did, fact, belong Gray, taking the result a mis- identity. take He denied that he stolen had the cattle and that he had admitted to Dietz and stolen that he had them.
Upon cross-examination, appellant denied that he started voluntary and, statement in that connection, testified: “It not true that I came to San into Saba went County Attorney’s voluntary office and started make a state- ment about the whole I talk transaction. did Mr. Ford on that day. did Attorney I not County know him to at be the that time. County Attorney. I don’t think he informed that he was the me I anything day. don’t know that Mr. did on did Ford He something typewriter.” write on the go
It should be noted that did into this matter upon inquiry he did direct as to whether examination. upon voluntary county attorney
make a statement arose cross-examination. denial, appellant’s out, re-
After as above set buttal, proved by county attorney, as follows: defendant, did acquainted
“I am I with the Conner C. Elliott. my year. day July him in see office on or 2nd of this the 1st after- Mr. late in the J. E. was there with him. It was something they say four noon I like when came in. would it was right thirty to four or at five o’clock. voluntary me Mr. a statement
“While Elliott was said, him, said, trying quote is the I am not but he this ought maybe I first time that I have ever trouble taking immediately quit lawyer. to talk to a he said that I When going to take them that I was not statement and told lawyer. Mr. then statement if he wanted to talk to knowledge I my office. own took him down to the sheriff’s Of lawyer anything called. don’t know else about when warning a state- “I him about did administer warning statutory I told form. ment. I in its administered the any all at to make statement him that he not have against might used in evidence that he did make be statement receiving warning did make a him. After during state- progress of me. It was lawyer.” might see better ment that he told me he *4 statement, making touching aof Out of facts stated complain exception. of appellant These three reserved bills appellant relative of the the cross-examination by proof denied, statement, a which begun not fin- county attorney was that a statement custody and in appellant under arrest ished —all because at the time. appellant exception contain a certificate These bills of alleged
was under arrest at the time the certify to the correctness trial court refused made. The been appel- upon relied the facts set forth of that certificate but fact, at the time. was, showing under lant as Hodges, representatives Dietz and show that These facts investigating actually Association, Were Raisers of the Cattle investigation and, of that alleged in the course theft cattle appel- and testified theft appellant of the openly accused
289 guilt. time, they At each lant admitted to him his were pistols plainly visible and in shirt sleeves wore dressed Appellant appears upon persons. to have open their to view Hodges custody immediately took him to the taken into asking county attorney’s after him he wanted office confession.
Referring appellant to the time when left with go office, county attorney’s Dietz testified: left, stayed
“At time arrested this man and I the officers Gray’s Gray cattle.” out there with Mr. and with Mr. appellant took to the office of the being present
and remained while the statement was made. discontinuing After of the statement reason appellant’s asking lawyer, Hodges appellant delivered to see sheriff, jail. placed him in who facts, perhaps
In addition to these and which is the most significant touching upon question of all the facts appellant arrest, testimony whether was under is the county attorney appellant when he made testified that before gave warning. statutory statement he to him the If arrest, give necessity was not then under existed to him warning; was, statutory warning necessary if he county attorney the statement be admissible. must have time, considered under arrest at the because he give statutory warning. him the officer, custody
Whether one is under of an arrest or meaning P., governing within the of Art. C. C. confession, upon be determined definition strict custody. viewpoint of arrest or of the accused and the im pression upon thought made him as to whether under he was given arrest are to be consideration. v. 126 Tex. Rollins (2d) 541; Lightfoot 73 Tex. Cr. S. W. Apparently, county attorney Dietz and the custody, accusing lant was under arrest. had him in crime; he never let out of his until he *5 delivered him to the sheriff. stated,
Under the facts the conclusion is reached that custody, meaning of lant was under arrest and in within the 727, Art. C. P. C.
.290 approaching In questions pre- determination of the here
sented, kept it must be in mind that a confession made while conformity under coming and arrest not in with the statute and not gestae scope within the res of is not either admissible purpose impeachment. as evidence or for the of Donohoe 115 Tex. Cr. Attention is also directed fact that at time did the attempt State to show of the contents the statement as made writing by county attorney. reduced not Whether or had therein confessed to of the cattle only, by testimony therefore as an left inference reason of the of Dietz and did confess them. he Finally, then, error is reversible claimed in the action here interrogating in appellant upon the State cross-examination county attorney and, his after to. denial, impeachment showing in by of him that he did county attorney, a statement all under arrest. while make appears It the case Brent v. 89 Tex. point. accused, upon 232 W. S. is in case In cross-examination, if, asked after while jail, (a) telephone, (b) he had not used the did not talk telephone wife, (c) over the to his talk over tele- did not phone Guyton, (d) to one Paul talk over telephone person. to some other To all these matters the ac- registered then, objec- jailer cused a denial. The over tion, permitted testifying impeach by the accused he did telephone holding testimony such make calls. In such reversible error, we said: all
“Under our authorities the introduction of evidence jail by what was said and done unwarned while error, of such character cannot assume that we say it intro- was harmless. of this forbid the The statutes state against any crime, ductions one or of accused of of his confession by statement made uni- him while and unwarned. The criminating form decisions of state- this court hold that comprehension ment an unwarned accused comes within uni- statute. Likewise it has been forbiddance said formly criminating held that such statement of such evidence of impeach or contradict unwarned accused cannot used to be are event he behalf. These became witness his own need matters so well settled this court as to decisions no further discussion.”
291 the case a material distinction in are unable to see Brent We present an inference case. In fact there is here the instant might case, that which is inference not found the Brent the fact, had, jury confessed be drawn that sup guilt county attorney. As statement made State, case, Spires 123 holding porting in the Brent see v. State, 117; Tex. (2d) v. 126 Tex. R. Cr. 59 S. W. Williams State, 540; 144 Tex. Cr. (2d) Beachem v. S. W. . 162 S. W. 706 light holding case, supra, con- In the in the Brent of the expressed is here reflected clusion is reversible error particular discussed. judgment cause trial reversed and the court is remanded.
Opinion approved the Court. rehearing. ON-STATE’S motion Judge. KRUEGER, cor-, rehearing, challenges
In its motion for a the state original expressed opinion rectness of our in our conclusion as permitting wherein state, wé held that trial court erred in appellant, inquire on cross of him examination of. county attorney’s he did not come make office and start to Appellant voluntary transaction. confession about the whole replied that he did not at that time know Mr. Ford was County Attorney; Ford; he did talk to Mr. that he did but anything day; know that Mr. that he did write Ford did on something typewriter. on a then called Mr. Ford The state proved by opinion. facts set forth in the went, contends, motion, The state .first in its voluntary into the matter relative to his intention legal right confession; and, therefore, intro the state had a attorney. county duce the balance of his statement made to anything again record but fail to find examined the We evidence in the record that he first introduced which shows the intention appearance with before the Appellant was under confession. officer, that he declined mere fact of an and the against him. See was not admissible confession 911; Ripley 58 Tex. Cr. Swisher v. 84 S. W. (126 586), many subject R. 489 where cases on the are . cite d state, by It occurs to us that the evidence set forth in original opinion, sought impress jury our with the fact *7 that since was taken before the purpose voluntary confession, though for the even so, guilty charged. he declined do. of the offense It quite highly prejudicial. obvious that this was n Believing properly disposed that the case was of on submission, rehearing the motion for is overruled.
Opinion approved by the Court. Lee
Robert Fawcett v. State. No. 24071. June 9, 1948. Rehearing Denied October 13, 1948. Lord, Judge Presiding. Hon. M. Owen O’Fiel, Beaumont, D. H.