260 S.W. 174 | Tex. Crim. App. | 1924
Conviction is for attempting to pass as true an alleged forged instrument, the punishment assessed being two years confinement in the penitentiary.
The instrument upon which the prosecution is based is as follows: *155
"Texarkana, Tex., February 2, 1923, No. 314 The Texarkana National Bank Pay to J.E. Richardson or bearer $25.00 Pay $25 and 00 cts.
J.E. ARCHER, Asst. cashier."
It is made to appear that after appellant was arrested and while confined in jail upon this charge the county attorney caused him to be brought to the county attorney's office and there had appellant write the words "February," "Texarkana," "J.E. Richardson," also to write his own name and to do some other writing under the direction of said officer. He was not warned. Upon the trial the county attorney produced the slip of paper upon which appellant had written as requested by the officer, testified to the foregoing facts, and identified the writing as appellant's. Objection was made to proof of anything appellant said or did, either in words or writing, because he was under arrest and was not warned, on the ground that anything he said or did under such circumstances was not admissible against him. It further appears that over the same objection the State was permitted to introduce in evidence the slip of paper with the writing thereon. It appears from the qualification to the bills that the writing was admitted in evidence as a basis of comparison with the disputed writing in the check alleged to be a forgery.
It is urged that the proceedings complained of is violative of Article 810 of our C.C.P. which forbids the use of a confession against an accused unless voluntarily made in writing and signed, after a proper warning. Mr. Branch in his valuable Annotated Penal Code, page 32, Section 59, deduces from the many authorities collated what we regard as the sound general rule as follows:
"The Statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the State as a criminative fact against him."
In addition to the authorities cited by Mr. Branch and as supporting the announcement that the acts as well as verbal statements come within the statute, we refer to Nolan v. State, 14 Texas Crim. App., 474; Thompson v. State,
Appellant was brought to the county attorney's office at the latter's direction. His presence there was not voluntary, and not of his choosing. He was not warned. Suppose when requested to write he had said, "There is no necessity to do so, I forged the check." Who would then contend that the verbal statement would be provable? Or, if when requested to write he had refused to do so, and had remained silent; his refusal or silence could not be used as a circumstance against him. But because he does write as directed by the prosecuting officer, though unwarned, and in the absence of the other formalities required by the statute, can it be said that the State may take the writings thus secured and use them as standards of comparison to prove, or aid in proving, the very offense with which appellant stands charged? In Brent's case (supra) the defendant was in jail. Without suggestion from the officers he asked permission to use the telephone, and did call and talk to his wife and one Guyton. The conversation with neither was proved; but in connection with other facts shown by the State the very act of calling and talking to the parties named was used by the State as a most cogent incriminative circumstance against Brent. The proof was made over his objection, and it was held violative of the statute. In the instant case the writing is secured not from an impulse moving from accused, but from the representatives of the State; they inaugurated the proceedings and directed him to write. What motive prompted them to have him brought from jail and without the formalities required by law secure the writing? Surely it was not the interest of appellant that induced them to so proceed, for the writing thus secured was used to his grave injury at the trial.
It may be said that the rule relating to proof of foot-prints, long ago adopted and adhered to by this court, is an apparent exception in the application of the statute relative to confessions. See Branch's Ann. P.C. page 33, subdivision 5 for authorities collated; see also Bryson v. State,
The learned trial judge, with his usual care and caution, justifies his reception of the evidence complained of by the opinions of this court in Ferguson v. State,
"In reference to this matter counsel for appellant contends, that under the rule which excludes the admission and confessions of a defendant made while in custody and unwarned the State could not prove the signature to the application executed by him under like conditions. To this proposition we do not assent. The act of signing the document was neither an admission nor a confession by defendant. It was not an act tending to show guilt. It does not come within the letter or the reason of the rule. The fact that defendant was in custody when he signed the application would not likely affect the signature in any manner so as to render it unfit for use as a standard of comparison. That he did sign it was no evidence against him. There was no error in this matter."
Doubtless it was the language just quoted which influenced the learned trial judge in the instant case to admit the evidence here complained of. The opinions as a whole and the particular language used by the learned jurists who wrote in the three cases referred to must be viewed in the light of facts of those cases. In each of them the accused of his own volition had signed papers in preparation of his case for trial or to secure his release from custody. There was no apparent connection between the charges pending against them and the signing of their names to the various instruments. The papers when signed became court documents, a part of the record in the respective cases. How different in the present case; here appellant is charged with forgery and with passing as true a forged instrument, either being offenses which involve the making of an instrument in writing, and for the very purpose of securing from him evidence *158 tending to show his guilt, the prosecuting officers procure appellant's removal from the jail to their office, and under their direction secure from him not his signature alone but a writing of many of the identical words in the alleged forged instrument, evidence later used to bring about his conviction. The great judges who wrote the Williams, Hunt and Ferguson opinions (supra) would in our judgment never have applied the rule announced in those cases to a state of facts now before us.
We advert to one other case which has come to our attention in the investigation of this question. In Jones v. State,
Believing the learned trial judge to have been led into error by the language of some of the opinions referred to based upon an entirely different state of facts we conclude the judgment must be reversed and the cause remanded for the reasons heretofore stated, and it is so ordered.
Reversed and remanded.