Barth v. State

• Decision Date: 08 June 1898
• Citation: 46 S.W. 228
• Parties: BARTH v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 228

BARTH v. STATE.

Court of Criminal Appeals of Texas.

June 8, 1898.

Appeal from district court, Gillespie county; W. M. Allison, Judge.

Fritz Barth, Sr., was convicted of murder in the first degree, and he appeals. Reversed.

A. W. Moursund, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death, and he prosecutes this appeal.

The state introduced the witness G. B. Riley, sheriff of Gillespie county, who testified that he arrested defendant, Fritz Barth, on December 9, 1897, on the charge for which he was being tried, and placed him in jail on the same day, where he remained up to the time of the trial, and, while said defendant was so in jail, he had two conversations with him; that at the time of having the first conversation with him in jail, which time the witness knows was before Christmas of 1897, he informed defendant that any statement he might make could be used in evidence against him; that he only informed defendant once, and cannot say whether the statement of defendant made to him, and proposed to be used as evidence against defendant, was made in the first conversation, after he had so informed defendant, or in the second conversation, had later,—how long after he could not recollect, it may have been only one week or two or three weeks, but knows defendant's statement was after such caution. When the state offered to prove by the witness the statement so made by defendant to said witness, defendant objected, because defendant, being at the time under arrest, had not been properly cautioned, as required by law, to make such evidence admissible, and the evidence given failed to show that such statements were made after defendant was properly cautioned and under such caution; which objections were by the court overruled, and witness permitted to testify that defendant said he knew he had killed his wife, and they could do as they pleased with him. Witness Riley stated these conversations occurred some time between December 10 and December 25, 1897, and after he had cautioned him.

In Barnes v. State, 36 Tex. 356, it was held that the confessions admitted in testimony should be contemporaneous with the caution; that is, should be made immediately after the caution given. In Maddox v. State, 41 Tex. 205, the rule above laid down was departed from to the extent of permitting confessions to be introduced which were not made immediately after the warning given, but which were made by the defendant in that case to the same parties who had given the warning, and only a few hours afterwards, on the same day, while they were taking him to jail. In Baker v. State, 25 Tex. App. 1, 8 S. W. 23, the question came up in somewhat different form. In the latter case the warning given was by the magistrate, who was conducting a preliminary examination of the case. He gave the warning required under the statute in regard to the privilege of defendant to make a statement. It appears that appellant at this time made no statement, but subsequently, some hours after the warning given by the magistrate, made a confession, while he was still under arrest, in the absence of the magistrate, to the officers who then had him in charge. In that case the court use the following language: "The fact that a few hours prior to the time of making said statements the defendant had been cautioned by the magistrate, before whom the charge against him was being investigated, that a voluntary statement, if he should make one, might be used in evidence against him, does not, we think, dispense with a caution with respect to statements subsequently made on another occasion, to another party, and under entirely different circumstances. The caution given him by the magistrate related alone to a voluntary statement,—a judicial proceeding in the presence of the court,—a written statement to be signed by the defendant. It would be stretching the rule too much, we think, to apply a caution made under such circumstance to any and all statements made by the defendant on subsequent occasions." The court appears to predicate its holding on the idea that the statements were not made to the officer giving the caution, and not embraced within that warning; that the warning given was intended to suggest a voluntary statement only, and not to suggest an extrajudicial confession, or one made to some other than the magistrate giving the warning. The decision appears to uphold a strict construction of the statutes regulating and controlling confessions. We do not gather, however, from this decision, that it was intended to decide that, before a confession is admissible, it must be made immediately after the warning given; and we think the true rule on this subject, as adduced from the authorities, is that the warning given must be in substantial compliance with the statute, and that the confession, if not made directly after the warning given, must be within such reasonable time thereafter as to indicate that the defendant yet remembered and was impressed with the warning given, and that he made the confession under a due apprehension of its legal effect, to wit, that it could be used in evidence against him. Applying this rule to the question here presented, we do not think that the statement or confession made was under such conditions as authorized its admission in testimony against appellant. The officer to whom the statement was made stated that he had warned or cautioned appellant that any statement he might make in regard to the homicide might be used against him, but he does not know how long, prior to appellant making said confession to him, he gave said warning. He states that it might have been a week, or two or three weeks. We cannot assume, from this general statement, that appellant was at the time he made the confession impressed with the idea that what he then said could be used in evidence against him, or that he knew he was then making it under the conditions that had previously been stated to him by the officer.

The state was also permitted to prove by the witness John McDugal that he was the jailer of Gillespie county, and had charge of defendant while he was confined in jail on this charge; that some time after December 25, 1897, he had several conversations with the defendant; that he gave the defendant no caution or warning that any statement he...