62 S.W. 757 | Tex. Crim. App. | 1901
Appellant was convicted of burglary, and his punishment assessed at two years confinement in the penitentiary.
The State introduced appellant's confessions against him. Appellant excepted on the ground that he was under arrest at the time the confessions were made, and was not properly warned, and, if properly warned, that the conefssions were made to officers under promises of reward and persuasion. The State's witnesses (the sheriff and his deputy) testify that a proper warning was given, to wit, that they told appellant before he confessed to the theft that same would be used against him as evidence. However, appellant introduced two witnesses who stated that the warning given was that his statement could be used for or against him. If this was the warning given, this confession was not admissible. *19
Guinn v. State, 39 Tex.Crim. Rep.; Unsell v. State,
On this subject of confessions we notice the court gave the following charge: "You will determine from the evidence whether there was or was not a confession under such a warning as before defined, and voluntarily and freely made as before instructed. If you so find, you will convict defendant, and assess his punishment by confinement in the penitentiary not less than two nor more than twelve years." This was evidently a charge on the weight of the testimony. That is, the effect was to tell the jury to convict appellant on his confession alone. This confession went to the jury as any other testimony; but the court had no right to instruct the jury to convict defendant on his own confession, it not being a judicial confession.
It is not necessary to discuss other questions, but for the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.