Baggett v. State

• Decision Date: 28 February 1912
• Citation: 144 S.W. 1136
• Parties: BAGGETT v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 1136

BAGGETT v. STATE.

Court of Criminal Appeals of Texas.

February 28, 1912.

Appeal from District Court, Cherokee County; James P. Gibson, Special Judge.

Irvin Baggett was convicted of theft, and he appeals. Reversed and remanded.

Guinn & Guinn, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is a conviction for hog theft; the punishment being assessed at two years confinement in the penitentiary.

1. The main state's witness, O. D. Cowan was a principal in the alleged theft. He therefore was an accomplice when used as a witness for the state, and a proper charge was required instructing the jury in regard to this phase of the law. The court gave the following charge in that connection: "Now, you are instructed that you cannot find the defendant guilty upon O. D. Cowan's testimony, unless you first believe that the testimony of the said O. D. Cowan is true, and that it shows, or tends to show, that the defendant is guilty as charged," etc. A proper and timely exception was reserved to this charge, especially that portion of it which informs the jury that his testimony must tend to show that the defendant was guilty. This charge has been so frequently condemned it is deemed unnecessary to do more than to cite the authorities condemning the charge. Grant v. State, 60 Tex. Cr. R. 358, 132 S. W. 350; Shrewder v. State, 60 Tex. Cr. R. 659, 133 S. W. 281; Pace v. State, 58 Tex. Cr. R. 90, 124 S. W. 949; Fruger v. State, 56 Tex. Cr. R. 394, 120 S. W. 197; Barrett v. State, 55 Tex. Cr. R. 185, 115 S. W. 1187; Tate v. State, 55 Tex. Cr. R. 399, 116 S. W. 604; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Newman v. State, 55 Tex. Cr. R. 276, 116 S. W. 577; Dorham v. State, 58 Tex. Cr. R. 283, 125 S. W. 397; Wadkins v. State, 58 Tex. Cr. R. 110, 124 S. W. 960, 137 Am. St. Rep. 922, 21 Ann. Cas. 556; Jordan v. State, 59 Tex. Cr. R. 208, 128 S. W. 140; Maibaum v. State, 59 Tex. Cr. R. 386, 128 S. W. 378; Ware v. State, 60 Tex. Cr. R. 38, 129 S. W. 836.

2. Quite a vigorous motion for a new trial was based upon the ground that appellant's codefendant, having been acquitted, after the conviction of appellant, he was entitled to a new trial in order to obtain the testimony of said codefendant as a witness, setting out the materiality of his testimony. The state's case was that the acquitted codefendant was a principal in the transaction and assisted in the alleged theft. The main state's witness, the accomplice Cowan, places him at the scene of the theft and participating in it. It is not the purpose of this opinion to discuss the merits of that matter. We simply hold the court should have granted a new trial. The materiality of the testimony is placed beyond any question. The credibility of the witness is not for the court, but for the jury.

3. The state was permitted to introduce a part of what is termed a confession of appellant. The facts are uncontroverted that he was under arrest at the time, was brought from the jail, and carried to the law office of Mr. B. B. Perkins, who was assisting in the prosecution. Mr. Perkins wrote down what he states the defendant stated to him, after giving the statutory warning. The alleged confession contained other matters than those connected with the theft in question. Various objections were urged, and sustained, except to that portion which is hereinafter set out. The jury was retired, and the matter gone over before the court. The court admitted the following: "On the 22d day of August, between sundown and dark, O. D. Cowan and Richard Baggett went hunting, and returned to my house between sundown and dark, and had a hog with them. I asked them where they got this hog, and they said in the `old Jolley field.' They said they shot it, and that it was Mr. Gunter's old bobtailed sow. They didn't tell me where they buried the head and hide. We used this hog as we needed it." Gunter is the alleged owner of the hog charged in the indictment as having been stolen. The bill of exceptions refers to the statement of facts for particulars. The voluntary statement, as it is termed, as there found, does not comply with the statute. It fails to show that the statement was made to Mr. Perkins or to any particular person. Mr. Perkins testified that he warned the defendant, and he made the statement, but the written document itself does not show to whom the statement was made. It is further deficient in that is was not signed by appellant, and not witnessed by anybody. There were two parties present at the time the statement was made, as shown by Mr. Perkins' testimony. The state recognized it was inadmissible as a voluntary confession under the statute pertaining to written confessions.

It was therefore offered by the state upon the theory that the fruits of the crime were discovered by means of the statement, and therefore it...