Broussard v. State, 19173.

• Decision Date: 23 February 1938
• Docket Number: No. 19173.,19173.
• Citation: 114 S.W.2d 248
• Parties: BROUSSARD v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W.2d 248

BROUSSARD v. STATE.

No. 19173.

Court of Criminal Appeals of Texas.

February 23, 1938.

Commissioners' Decision.

Appeal from District Court, Orange County; F. P. Adams, Judge.

H. Y. P. Broussard was convicted of murder, and he appeals.

Reversed and remanded.

K. W. Stephenson, of Orange, and Quentin Keith and O. I. Baker, both of Port Arthur, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for twenty five years.

It was the theory of the State, given support in the testimony, that appellant assassinated the deceased, Albert Theriot. Appellant's testimony raised the issue of self defense.

The homicide occurred about 10 a. m. About 8 p. m., on the same day, appellant was taken from the jail and questioned by the district attorney. It does not appear that any statement he made concerning the killing of the deceased was reduced to writing. Over appellant's proper objection, the State elicited from a witness testimony to the effect that appellant stated to the district attorney that at the time he killed deceased he (appellant) was squatted down behind some barrels. Testifying in his own behalf, appellant denied that he made such statement; and, as already stated, gave testimony raising the issue of self-defense. Under the circumstances, the bill of exception reflects reversible error. The purpose and effect of article 727, C.C.P., is to prevent the prosecution from using against the accused a verbal statement made by him, while under arrest, which the State seeks to use in proving his guilt. Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163. Manifestly, the proof in question combated appellant's theory of self-defense and showed a cold-blooded assassination. We quote said article 727, supra, 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 the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness."

We think the question propounded to one of appellant's character witnesses, as set forth in bill of exception No. 18, was improper. We quote the question: "And if he (referring to appellant) made a contract with someone for the fur lease...