Aiken v. State

• Decision Date: 19 June 1901
• Citation: 64 S.W. 57
• Parties: AIKEN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

Page 57

64 S.W. 57

AIKEN v. STATE.¹

Court of Criminal Appeals of Texas.

June 19, 1901.

Appeal from district court, Bowie county; J. M. Talbot, Judge.

J. E. Aiken was convicted of manslaughter, and appeals. Affirmed.

J. Q. Mahaffey, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of manslaughter, and his punishment assessed at five years' confinement in the penitentiary; hence this appeal.

Appellant excepted to the action of the court in allowing the state to introduce his voluntary statement made before the examining court. Appellant insists "that the same is not admissible as a confession at common law, nor under the rules of evidence or practice of this state, being made in response to a suggestion of the magistrate before whom taken; that defendant had a right to make such a statement, and because it is testimony taken by the state to be used by the state, and not by the defendant, and at the instance of the state, and was taken without warning or authority under the existing statutes of the state. And, further, it was an effort to force defendant in a criminal cause to give testimony against himself, when he does not elect to do so." Under this assignment of error it is insisted that the caution of the magistrate is not in accordance with article 282, White's Ann. Code Cr. Proc., in that the magistrate informed appellant that the statement could not be used for him. While the article in question does not provide that such voluntary statement cannot be used for a defendant, yet we understand this to be the rule; that is, if appellant before an examining court makes a statement, it can be used against him, but not for him. Consequently it did not vitiate the voluntary statement for the magistrate to so inform appellant. We do not understand from the bill of exceptions that any undue means or influences were exercised by the magistrate to cause appellant to make the voluntary statement. He was simply informed of his right to make the statement, but that he could not be compelled to do so, and that, if he did, the same could be used in evidence against him. Even if it be conceded that any questions were propounded to appellant by the magistrate or the county attorney to elicit the statement after defendant decided to make it, this would not exclude it. Bailey v. State, 26 Tex. App. 706, 9 S. W. 270. However, it is contended that articles 282, 283, White's Ann. Code Cr. Proc., authorizing an accused person to make a voluntary statement, are repealed by the act of 1889, article 770, White's Ann. Code Cr. Proc., authorizing defendants to testify in their own behalf. The contention is that said act covers the same ground as said preceding articles, and operates a repeal of the same by implication. We do not so regard it. Repeals by implication are not favored. Before we would be authorized to hold that the former statutes had been repealed, it must manifestly appear that it was the intention of the legislature in passing the last act to repeal the former statutes relating to the same subject-matter. As we view it, the articles authorizing appellant to make a voluntary statement at the examining trial relate to a different subject than the act which authorizes a defendant...