Barnes v. State

• Decision Date: 01 January 1871
• Citation: 36 Tex. 356
• Parties: GEORGE W. BARNES v. THE STATE.
• Court: Texas Supreme Court

36 Tex. 356

GEORGE W. BARNES

v.THE STATE.

Supreme Court of Texas.

1871.

1. Confessions made while under arrest, and induced by promises or threats, cannot be used against the party making them; and it is a presumption of law that the influence of the threats or promises continued to operate, until such a period as rebutting proof clearly shows that it had ceased to operate.

2. The clear purport and intent of Article 3127, Paschal's Digest, is, that the confession of a defendant shall not be used in evidence against him unless it be made to appear that at the time the confession was made, it was voluntarily made, after having been cautioned that it might be used against him; that the caution must immediately precede the confession, and also that after the caution the confession was voluntary.

3. See this case for confessions held not to be voluntary.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

The opinion of the court sufficiently discloses the facts of the case.

E. Higby, and W. P. Bacon, for the appellant.

Wm. Alexander, Attorney-General, for the State. The only question presented by this case, is the proper construction of Article 662, Code of Criminal Procedure (Paschal's Digest, 3127), and its proper application to the facts of this case.

The article in question reads as follows:

“The confession shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court, in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him; or, unless in connection with such confession he make statement of facts or of circumstances, that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or instruments with which he states the offense was committed.”

The facts connected with this question, as detailed in the statement of facts, are as follows:

Upon appellant's arrest, he was placed in the custody of the marshal of Austin, who induced him (appellant) to go to the mayor's house to make a confession: the inducement was, it would be better for him to tell all he knew about the murder--but no confession was then made, or, at least, none then made is brought forward.

At the time of the private interview with the mayor above alluded to, a statement was made by the prisoner, which was reduced to writing; and on that occasion, the mayor cautioned the prisoner “in pursuance of the statute, that any confession he might make could be used against him on subsequent trial, but could not be used in his favor. That he subsequently cautioned him as before, at the time of his examination.” But no statement or confession made by him on either of those occasions, was offered in evidence on the trial.

About two days after the examination before the Mayor, the witness, Caddell, and three deputy sheriffs, took the prisoner out of jail about 9 o'clock at night (having their faces covered), and endeavored to force him to make a statement as to where the money was, which was taken at the time of the murder of Philpot. The means used in endeavoring to force him to make a statement are not detailed; but may be inferred from one significant fact stated by the witness, one of the party, “that Stokes had a rope around the neck of prisoner”--but the prisoner made no confessions that night.

About a month after the arrest of the prisoner, he made to witness Caddell a full confession of the circumstances of the murder (he being then in jail). It does not appear that any inducements of any kind were used to procure this confession, nor that any warning was given that any confession might be used against him at a subsequent trial. So far as the record shows, the confession was voluntary.

About the same time, and at sundry other times (all subsequent to the attempt above detailed, to force a confession), the prisoner (still in jail) made statements to witness Hartson, to the same tenor and effect with the confession to Caddell; which confession to Hartson “was voluntarily made, without threats or inducements being made or offered to the defendant at the time,” and equally without any warning given at the time of the use which might be made against him of any statement he might make.

In this state of the facts bearing upon the subject, it was proposed by the District Attorney in the court below, to introduce the confessions made to Caddell and Hartson as evidence to the jury; which was objected to by the defense, for the reason that Caddell and Hartson, at the time the confessions were made, did not warn him (appellant) that the statements he might make could be used against him on any subsequent trial; and the court below overruled the objection on the ground that appellant had been twice distinctly cautioned by the mayor on that subject in the terms of the statute, and that those warnings were sufficient to authorize the admission of the statements made to Caddell and Hartson.

The first question that presents itself is this: “To allow the use of the confession in evidence, is it necessary, that at the time it is made, and every time it is made, the accused be cautioned in the terms of the statute?”

The best mode of answering this question is, to refer to the language of the statute. (Article 662, C. C. P.) It will be found on examination, that no language is there used, which directly answers the question in the affirmative.

The words “at the time it was made” only refer to the condition of the prisoner, as to duress, but have no relation to the clauses subsequent, commencing with the word “unless.” The idea here offered will be easily elucidated, without doing violence to the sense, by changing the collocation of the words, so as to read as follows:

“If the defendant was in jail or other place of confinement, or in the custody of an officer at the time the confession was made, it shall not be used: unless such confession was made,” etc. The sentence, as it stands in the law, is awkwardly constructed, but its meaning is clear, and, when presented in the above form, is free from ambiguity.

The law...