Bingham v. State

• Decision Date: 30 April 1924
• Docket Number: (No. 8244.)
• Parties: BINGHAM v. STATE.
• Court: Texas Court of Criminal Appeals

262 S.W. 747

BINGHAM v. STATE.

(No. 8244.)

Court of Criminal Appeals of Texas.

April 30, 1924.

State's Rehearing Denied June 18, 1924.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Clyde Bingham was convicted of cattle theft, and appeals. Reversed and remanded.

Stinson, Coombes & Brooks, of Abilene, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for the theft of cattle with punishment assessed at two years in the penitentiary.

The cattle are alleged to have belonged to Mrs. Willie I. Martin. Dallas Cave was her foreman. We do not think it necessary to set out the facts. Information had reached Cave and Mrs. Martin which caused them to go to a certain pen and there identify calves which had been stolen from Mrs. Martin a day or two before. Appellant had been seen driving them. On the following Sunday morning Mrs. Martin and Cave were in Aspermont to confer with the county attorney relative to filing charges against appellant for theft of the cattle. In order to understand what follows it may be well to state at this point that W. B. Bingham was the sheriff, appellant was his son, and McLaurey his deputy. Cave testified that some one came to him with information that appellant desired to see witness; that he found appellant in the county courtroom, where appellant asked him (Cave) how much money would he take, and could witness go and square the matter with Mrs. Martin, and, upon being told by Cave that he could not, appellant requested witness to go and get Mrs. Martin. He did this, and she came to the courtroom at appellant's request. Both Mrs. Martin and Cave testify, in substance, that in the conversation which appellant then had with her he admitted getting the calves, expressed sorrow for having taken them, and offered to pay for them, admitted others were connected with the taking, but declined to disclose their identity; that Mrs. Martin asked appellant if his father knew about it, to which appellant replied that he had not seen his father, and did not want to see him until the trouble was settled.

The main question in this case relates to the foregoing testimony and the court's action relative thereto. The state offered the testimony as an admission of appellant against his interest. When it was tendered appellant asserted that he was under arrest at the time of the conversation, and that the statement was made without warning or other formalities required by article 810, C. C. P., before a confession was admissible, and requested the court to withdraw the jury and hear evidence upon that point. This the court declined to do, but permitted all the evidence pro and con upon the question of whether appellant was under arrest at the time to go to the jury along with the statement made by him, and then gave the following instruction to the jury upon that subject:

"The confession of a defendant shall not be used while he is in the custody of an officer, and, unless the state has proved to your satisfaction beyond a reasonable doubt that the defendant was not in the custody of an officer and was not under arrest at the time of the conversations between the defendant and the witness Dallas Cave, if any, and the conversation between the defendant and Mrs. Willie I. Martin, if any, as testified to by said witnesses, then you will not consider any statement made by the defendant to Dallas Cave or Mrs. Martin in said conversations, if any, for any purpose against the defendant."

The evidence upon which this issue was submitted may be condensed as follows:

McLaurey testified that on Sunday morning he had been informed that appellant was charged with theft of the Martin calves, and so informed the sheriff; that a short time before he gave the information to the sheriff witness saw appellant going towards town; that after he told the sheriff witness saw the sheriff get appellant and go to the courthouse with him; that afterwards at the courthouse he saw appellant, Mrs. Martin, and Cave together; that the sheriff was with appellant at the time; that they all went into the courtroom; that he could hear them talking, but could not tell what they said; that the sheriff was either in the courtroom or standing right at the door all the time.

The sheriff testified that he received the information from McLaurey, and also, that he had talked to the county attorney, and was directed by him to arrest appellant; that he did arrest him and took him to the courthouse; that up to this time he had seen neither Mrs. Martin nor Cave; that when he went to the courthouse with appellant he saw Cave and Mrs. Martin, when they went into the county courtroom with appellant; that he heard them talking about the cattle, but did not know what was said; that appellant was then under arrest.

The sheriff claims to have been present inside the door of the courtroom. Appellant denies making the statement attributed to him by Cave and Mrs. Martin, but says he did have a conversation with them, and that he was under arrest at that time.

Cave testified that when he saw appellant in the courtroom the first time no one was present but the two of them; that after he brought Mrs. Martin to the courtroom at appellant's request and the conversation occurred between them the sheriff was not with his son at that time, and that witness did not see the sheriff at the courthouse before the conversation.

Mrs. Martin testified that when she had the conversation with appellant his father was not present; that he came into the courtroom while they were talking.

The evidence of Cave and Mrs. Martin went to the jury, together with the statement of appellant made to them before the evidence was presented on appellant's behalf on the contention that he was under arrest.

In discussing the question under consideration it must be borne in mind that our statute (article 810, C. C. P.) excludes a confession or admission if made while accused is in jail or in the custody of an officer unless reduced to writing and signed by accused.

The point is made that the court did not pass upon the admissibility of the alleged statement at all, but under the instruction given left the jury to determine its admissibility as well as the weight to be given it. It is apparent that the learned trial judge based his action upon the rule which seems to be well established in this state that, where a question is raised as to whether a confession is voluntary or otherwise, it may be submitted to the jury (see section 66, p. 41, Branch's Ann. P. C., and authorities there cited), because in explaining the bills complaining of his refusal to retire the jury and hear evidence in their absence on the preliminary question of appellant being under arrest he says:

"The court admitted before the jury the evidence of the state and the defendant, as shown by the record, as to whether or not the defendant was under arrest at the time of the conversation between defendant and the witness Cave, and the conversation between the defendant and the witness Mrs. Willie I. Martin, and submitted said issue to the jury in his main charge, as shown by paragraph V of said charge."

The record bears out the truthfulness of this explanation. It is not necessary to discuss at this time whether the practice (now firmly established in this state) of submitting the question of "voluntariness" to the jury is in accord with the weight of authority on that point. The subject has received attention in 2 Wharton, § 689a, pp. 1420-1423; Underhill, § 217, pp. 307-311; 1 Wigmore, § 861; 1 Ruling Case Law, §§ 122, 123. The learned trial judge appears to have overlooked the fact that in this state as well as in other jurisdictions where the question of the voluntary character of the confession is finally submitted to the jury it is still the duty of the court to first determine its admissibility,...