Chism v. State

• Decision Date: 15 October 1913
• Citation: 159 S.W. 1185
• Parties: CHISM v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 1185

CHISM v. STATE.

Court of Criminal Appeals of Texas.

October 15, 1913.

Appeal from Tarrant County Court; R. E. Bratton, Judge.

Oliver Chism was convicted of gambling, and he appeals. Reversed and remanded.

W. E. Myres and M. B. Simpson, both of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of gambling.

The state's case was circumstantial that appellant was engaged in gambling. This was positively denied by appellant in his testimony and by other witnesses. In rebuttal the state introduced the witness Buck Williams, deputy sheriff, who had previously testified in the case, and by him proved as follows, as shown by bill of exceptions: "After we arrested the defendant and the two Smiths for gaming, and while we were taking them to jail, and after we had got about half mile where we arrested them, the defendant told me that he and the witness Will Smith had been gaming, and that Jim Smith had nothing to do with the game. At the time this statement was made to me by the defendant, he had not been warned that his statement would be used in evidence against him, nor was his statement reduced to writing and signed by him." Appellant reserved all sorts of exceptions, among others, that the testimony showed, at the time the conversation was had between the deputy sheriff and himself, he was under arrest and en route to jail, was in charge of the officers and the statement introduced was in the nature of a confession by defendant to the officer; that the defendant had not been warned as the law required; and that the statement was not reduced to writing and signed by him in obedience to the statute; and that before the confession of the defendant could be introduced against him these things must occur. This is one of the bills and illustrates the issues presented in the other bills of exception. It is therefore unnecessary to discuss but one of the bills. The exceptions are well taken. The confession, under the circumstances stated, was inadmissible. Before a confession can be used under circumstances here detailed, the witness must not only be warned, but that statement must be reduced to writing in accordance with the statute. The objection should have been sustained and the testimony excluded.

It is unnecessary to discuss the other bills of exception. One of the bills sets out practically the same character of testimony as the above, and under the same circumstances, but...