Cannada v. State

• Decision Date: 03 June 1891
• Citation: 16 S.W. 341
• Parties: CANNADA v. STATE.
• Court: Texas Court of Appeals

16 S.W. 341

CANNADA v. STATE.

Court of Appeals of Texas.

June 3, 1891.

Appeal from Lamar county court.

J. C. Hodges and H. B. Birmingham, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for the theft of a horse. There are two bills of exceptions in the record before us. One is as to the admission of the proof of the confession of the defendant to the sheriff, Chaney. This evidence of the confession was admissible, because it appears from the statement in the bill of exceptions that the sheriff did not induce the confession by any promise or hope of favor held out to the defendant. The doctrine now held in regard to confessions is "that there must be a positive promise made or sanctioned by a person in authority to justify the exclusion of the confession." Searcy v. State, 28 Tex. App. 513, 13 S. W. Rep. 782, and authorities cited. As shown in the bill of exceptions, it appears that the defendant asked the sheriff "if he [the defendant] would own to the truth, if it would be easier with him?" And that the sheriff simply answered, "that it usually did." This was no promise or inducement on the part of the sheriff, and the court did not err in overruling the objection and in admitting the confession. Albert Cook, the alleged owner of the horse charged to have been stolen, was not present at the trial to testify either as to the identity and ownership of the horse or his want of consent to the taking of the same by the defendant. The state attempted to make this proof by circumstantial evidence. There was no one who could prove that the horse alleged to have been stolen was the property of or had ever been in possession of Cook. Defendant's second bill of exception was reserved to the action of the court in permitting witnesses to testify that Cook, the alleged owner, went to the livery stable in Bonham, where the defendant had left the horse, saddle, bridle, and blanket, and that said Cook pointed out and claimed and took possession of the said property as his property, and carried it away with him. This testimony was objected to because the defendant was not present at the time, and, moreover, because it was hearsay. We are of the opinion that the objection should have been sustained, and that the admission of the evidence was error, for which the judgment must be reversed. Defendant could not be held bound, when absent, by anything which Cook and others may have said or...