Clark v. State

• Decision Date: 11 December 1918
• Docket Number: (No. 5228.)
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

207 S.W. 98

CLARK v. STATE.

(No. 5228.)

Court of Criminal Appeals of Texas.

December 11, 1918.

Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.

H. A. Clark was convicted of the offense of concealing stolen property, and appeals. Reversed and remanded.

Weeks & Weeks, of Wichita Falls, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of the offense of concealing stolen property.

The property involved was certain Michelin automobile casings and certain spark plugs. The state relied upon circumstantial evidence, a part of which consisted of verbal statements made by the appellant. The error complained of is predicated upon the proposition that these statements were made while appellant was under arrest, unwarned, and were such as the state was inhibited from using by the terms of article 810, Code Cr. Proc.

The deputy sheriff, having appellant under suspicion of committing the offense, went to appellant's place of business and told him he wanted him to come to the sheriff's office. Appellant went into a room for the purpose of changing his clothes. His wife also went in the room, and the deputy sheriff followed, requiring that appellant should have no conversation with his wife. On going to the sheriff's office with the officer, appellant was interrogated by him with reference to the property in question. He was dismissed at noon with instructions from the officer to return after lunch, which he did, remaining in company with the officer mentioned and another for some time, after which he was directed to accompany them in an automobile to his place of business, which they desired to search, and which they did search in his presence; and during the search one of the automobile tires upon the possession of which the prosecution is founded was found by the officers through their own efforts in searching the premises. Appellant was then taken by them in the automobile to his room, which was searched, after which they took him in the same manner to his place of business, and after making further search took him before the grand jury, and immediately after he was released therefrom he was placed by said officers in jail. He understood that he was under arrest from the beginning.

The view taken by the state is that the appellant was not under arrest until he was taken to jail. This is more strict than the law contemplates. The rule stated in Patrick's Case, 74 S. W. 551, is thus quoted:

"If by the acts and conduct of an officer having the party in charge he is led to believe he is under arrest or is in his own mind conscious of being under arrest, then the confessions, not coming within any of the exceptions named or implied in the statute, are not admissible."

It is not necessary that the arrest be made in formal words; it may clearly appear from the surrounding facts. Nolen v. State, 8 Tex. App. 585; Nolen v. State, 9 Tex. App. 425; Zimmer v. State, 64 Tex. Cr. R. 114, 141 S. W. 781; Jones v. State, 52 Tex. Cr. R. 207, 106 S. W. 126; Jones v. State, 44 Tex. Cr. R. 408, 71 S. W. 962; Buckner v. State, 52 Tex. Cr. R. 271, 106 S. W. 363; Calloway v. State, 55 Tex. Cr. R. 263, 116 S. W. 575; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920; Oliver v. State (Tex. App.) 197 S. W. 185.

During the appellant's examination by the officers in the sheriff's office he declared that he did not handle Mechelin tires, and during the search in his place of business, the officers having discovered a Mechelin tire with the number cut off, and calling appellant's attention thereto, appellant stated, "Yes," and was then asked if he had any more Mechelin tires, to which he replied, "No." He also said that the tire first found was a "second." To this one of the parties replied, the Mechelin people do not make "seconds." Appellant declared that they did. He was also asked where he got the tire, replying that it was on a car he traded for. He also said, in response to questions asked him about other Mechelin tires found in his place of business, that he bought them on a Ford. He also said, in response to an inquiry by the officers, that he did not know there were any spark plugs in his desk or trunk; that he had had to buy some because he did not think he had any.

Appellant's defense on the trial was that he had bought the spark plugs found in his possession, and that he had bought the four Mechelin tires in his possession from a person who brought them to his place of business. The state introduced proof of his statements after he was taken to the sheriff's office and while he was in company with the officers during the search of his room and place of business, and then introduced evidence to show that the statements thus proved to have been made by appellant were false, and they, being contradictory of his defense urged upon the trial, were used against him by the state to prove his guilt.

A like state of facts was passed...