234 S.W. 537 | Tex. Crim. App. | 1921
Rehearing
On Motion for Rehearing.
The sheriff testified that upon information received, he went to Jacksonville in search of the appellant. He found him after he had been arrested by another officer. Appellant told him where to find the stolen property, and, upon information thus obtained, the sheriff found it, consisting of eight automobile casings, four batteries, two cushions, and a sack of tools, in the house of the appellant. Before the appellant informed him, he had no knowledge of its whereabouts.
Appellant was not warned that his declaration might be used against him. Before he gave the information, the .sheriff told him that it would be better for him to tel] where the property was.* The admissibility of this testimony is challenged, but we regard the complaint as unsound. The requisites of a confession prescribed by article 810 of the Code of Criminal Procedure are not applicable where, “in connection with said confession, [the accused] makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.” The appellant’s declaration, though while under arrest, having led to the finding of the stolen property, was admissible (Parker v. State, 40 Tex. Cr. R. 122, 49 S. W. 80; Branch’s Crim. Law, § 222), and, under these circumstances, the confession was not rendered inadmissible by the sheriff’s statement that it would be better to discose the facts (Jones v. State, 50 Tex. Cr. R. 330, 96 S. W. 930; Collins v. State, 20 Tex. App. 419; Brown v. State, 26 Tex. App. 313, 9 S. W. 613).
As a predicate for the introduction of a written confession, the county attorney testified, as shown by the bill of exceptions, that he conversed with the appellant at the jail, and there told him he thought it would be best for him to make the statement; that later the appellant was brought to the office of the justice of the peace; that the county attorney then made the preliminary statement required by the statute, giving warning, etc. The appellant asked some questions, to which the county attorney replied that he had nothing further to say; that appellant must be governed by his own judgment; that the justice of the peace said he thought it would be best to go ahead and make the statement. Upon this predicate, the appellant advances the proposition that the confession should have been excluded because it was not voluntary. The principle which controls is stated by Mi*. Branch, in his Texas Annotated Penal Code, page 41, thus:
“To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority, and it must also be of such character as would be likely to influence the defendant'to speak untruthfully.”
In the application of this principle, there is an apparent absence of harmony in the reported cases. At least, there can be gathered from these decisions no exact formula as to what will and what will not exclude the statement. See Searcy v. State, 28 Tex. App. 513, 13 S. W. 782, 19 Am. St. Rep. 851; Rose’s Notes on Texas Rep. (N. S.) p. 785; See, also, 18 L. R. A. (N. S.) p. 821, note; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905. In cases of doubt, the better practice seems to be to permit the jury, under proper instructions, to determine whether the confession was voluntary. Berry v. State, 58 Tex. Cr. R. 291, 125 S. W. 580; Follis v. State, 51 Tex. Cr. R. 189, 101 S. W. 242; Jackson v. State, 50 Tex. Cr. R. 302, 97 S. W. 312; Gallaher v. State, 40 Tex. Cr. R. 307, 50 S. W. 388; Paris v. State, 35 Tex. Cr. R. 93, 31 S. W. 855; Sparks v. State, 34 Tex. Cr. R 88, 29 S. W. 264; -Underhill's Crim. Evidence, § 126, p. 245, note 16. In the instant case, we regard the evidence such as not to show that the court committed reversible error in holding the confession voluntary in the absence of a request to submit the matter to the jury.
We are convinced from our re-examination of the record, in connection with the statement of facts, that the judgment "should be affirmed. We therefore overrule the motion for rehearing.
Lead Opinion
Appellant was convicted of theft; punishment assessed at confinement in the penitentiary for a period of four years.
In the case before us, we are without the benefit of a brief for appellant, and there is but one bill of exceptions which challenges our attention. That relates to the introduction of the confession of the appellant. Two questions arise, namely: Was there a warning given? and, Was the confession voluntary?
From the qualification of the bill complaining of the receipt of the verbal confession, it is made to appear that by means thereof the stolen property was discovered. This being true, the verbal confession was admissible. Smith v. State, 53 Tex. Cr. R. 643, 111 S. W. 939; Vernon’s Texas Crim. Statutes, vol. 2, p. 756, note 12, and cases cited. The verbal confession having been properly admitted, and it going to establish the same fact to the proof of which the written statement was directed, any supposed error in the admission of the latter would be rendered harmless. Fulcher v. State, 28 Tex. App. 470, 13 S. W. 750; Brown v. State, 20 S. W. 924; Laurence v. State, 31 Tex. Cr. R. 601, 21 S. W. 766; Am. Digest (Century Edition) vol. 15, p. 933.
Especially is this true in the instant case, where effect must be given to the presumption that there was before the jury legal evidence adequate to sustain the conviction.
The judgment is affirmed.
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