Binkley v. State
| Decision Date | 20 February 1907 |
| Citation | 100 S.W. 780 |
| Parties | BINKLEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Taylor County; J. H. Calhoun, Judge.
Marvin Binkley was convicted of horse theft, and he appeals. Reversed and remanded.
F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was convicted of theft of a horse, and his punishment assessed at confinement in the reformatory and house of correction for a term of two years, and brings the case here on appeal.
The state introduced the confessions or statement of appellant made to L. L. Peevy, deputy sheriff, and to Cunningham, the sheriff. The circumstances under which same were introduced are as follows: Appellant was confined in jail on the charge in question for about five months, being placed in jail on the 25th of April, 1906, and the trial coming on September 10, 1906. The proof shows that appellant was about 11 years old. That the deputy sheriff, Peevy, warned appellant on one occasion while he was in jail; that he thereafter told the deputy sheriff on a number of occasions that he unhitched the horse in Abilene at night and drove him the next morning as far as Merkel; that he (appellant) and his companion were going to Sweetwater to get a job of work and make some money; that they intended to pasture and feed the horse until they got ready to come back. And the sheriff testified on this point that he did not warn defendant at all, but that he talked with him after he was confined in jail. The warning relied on by the state was that given by the deputy sheriff, Peevy. The sheriff testified as to appellant's statements about the same, as did the deputy sheriff on this point. At what particular time the warning was given with reference to the confession or statement made is not shown by the bill. We understand that the burden is on the state to show the admissibility of the confession, and the confession made by appellant must be so near in point of time to the warning, or the circumstances must be such, as to suggest that appellant had in mind the warning given at the time he made the statement or confession. There is nothing here to show this. Evidently the confession made to the sheriff is not shown to be so connected with any warning given by the deputy sheriff, Peevy, as to render appellant's confession admissible. We have held that, where it was shown that the warning was given a day or two before by the sheriff, and the statement was made to him, that this would be sufficient to show that the party had the warning in mind. See Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354. But where the warning was given at least a week previous to the confession, and the statement or confession was given to another person, it was held inadmissible. See Barth v. State, 39 Tex. Cr. R. 381, 46 S. W. 228, 73 Am. St. Rep. 935; and McDaniel v. State, 81 S. W. 301, 10 Tex. Ct. Rep. 923.
On the question of the capacity of appellant to entertain the criminal intent necessary to constitute theft of a horse, appellant reserved exceptions to the testimony of the witness Peevy, who was deputy sheriff, and also the testimony of Sheriff Cunningham. The proof shows that appellant was 11 years old, and the objection urged to the testimony of said witnesses was that they were permitted to give their opinions as to the capacity of appellant to entertain criminal intent, without stating facts on which to predicate such opinions; they not being experts on the subject. In this regard the witness Peevy stated that he was deputy sheriff and jailer of Taylor county, and as such he had in his custody in jail the defendant from April 25, 1906, up to the time of the trial; that since said custody the witness frequently had conversations with defendant about the transaction in question; that he talked with him about different things while in jail. The witness then detailed what appellant told him with reference to the offense as heretofore stated. On this predicate the witness was permitted to state that the defendant was quick witted and smart for his age; that he considered the defendant considerably above the average colored boy of his age, size, and intelligence. The witness Cunningham stated that he was sheriff of Taylor county, and that he talked with defendant while being carried from the depot to the jail, and that he talked with defendant a little after they reached the jail—something like half an hour—talked with him mostly about the case. The witness did not state the substance of his conversation with the defendant or detail his acts, except as above. The court then permitted the witness to state that, in his judgment, basing his knowledge upon what he saw and heard while with him, and while talking with him, appellant was a boy of sufficient intelligence and understanding to understand the nature and illegality of the act, if he took the horse; that he thought appellant had a fair knowledge of the crime committed; and that he knew he was...
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