Coleman v. State
| Decision Date | 06 May 1931 |
| Docket Number | No. 14170.,14170. |
| Parties | COLEMAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Runnels County; E. J. Miller, Judge.
T. H. Coleman was convicted for transporting intoxicating liquor, and appeals.
Affirmed.
T. T. Crosson, of Ballinger, and Critz & Woodward, of Coleman, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.
The state used only two witnesses, each of whom swore that with appellant's express consent they searched his truck which he was driving upon a public highway and found therein three and a half gallons of whisky. This seems amply sufficient to make out a case and to justify the jury in their conclusion of guilt.
Appellant used three witnesses who testified to his good character. No other testimony was before the jury. The defense in this case was that appellant was entitled to immunity from prosecution under the terms of article 694, P. C., which reads as follows: "No person shall be excused from testifying against persons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony." To show himself entitled to such immunity, appellant called the county attorney of Runnels county to the witness stand, who testified, out of the presence of the jury, that a day or two after appellant's arrest on this charge, either in the office of witness, or that of the justice of the peace, appellant made a statement regarding the transaction, which this witness reduced to writing and appellant signed. Witness gave the names of those present at the time. He further testified that after being told by the chief of police what had occurred at the time of appellant's arrest, witness talked to appellant, who said he did not think there was much for him to do, that he had been caught by the chief of police, and that they had found some whisky in his truck. He further said that he told appellant that he could make a statement if he wanted to, but that he did not have to do so, and that if he did it could be used against him but not for him. He further testified that he gave to appellant the statutory warning which appeared at head of the written confession signed by appellant, after which appellant went ahead and made the statement to witness as county attorney. He said this was not before any examining trial.
Appellant wished to place this same evidence, that was heard by the court, before the jury, and complains in two bills of exception that he was not allowed to so introduce same. Appellant introduced before the court, out of the hearing of the jury, both the county attorney and Mr. Moreland, the chief of police. No substantial difference is found between the statements of these two witnesses, at least none affecting the legal question presented.
If we understand appellant, he insists that in making the written statement to the county attorney he was, in the language of article 694, supra, "testifying against persons who have violated" the law against transporting intoxicating liquor; also, that he was "required to so testify," and that, therefore, he cannot be punished for acts disclosed in such statement.
Giving full effect to all the testimony heard by the court out of the presence of the jury, we still find nothing in this record supporting any such proposition as that appellant was required to testify against himself. On the contrary, the undisputed testimony shows that he was told that he did not have to make any statement unless he wanted to, and that whatever statement he made could be used against him. In other words, we find that he was given the full statutory warning usually prefacing confessions held admissible in all character of criminal cases.
In addition, we might observe that appellant in his statement did not "disclose" any acts for which he is here sought to be punished. What he told the county attorney, at the time the statement was made, amounted only to facts which were already known to the chief of police Moreland, and Mr. Armstrong who accompanied Mr. Moreland at the time appellant's truck was searched and the whisky found therein. In other words, all the testimony given upon this trial before the jury, and upon which the state relied for conviction, consisted of facts known to the officers prior to the time appellant made the written statement.
To hold that appellant was required to make this statement, or that the making of same under these facts was requiring him to give testimony against himself, would be to establish a precedent for the rejection of all confessions of criminals in all cases; the law requiring as a predicate for the admission of such confessions that the same be freely and voluntarily made, and, except in certain cases, after having been warned by the person to whom the statement was made. This we are unwilling to do.
We see no necessity for the introduction of this testimony before the jury, and are of opinion that the announcements of Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747, and Weddle v. State, 112 Tex. Cr. R. 250, 16 S.W.(2d) 244, are sound and enunciate a correct rule applicable here. In addition, we note that all the evidence heard by the court on the question attempted to be raised, appears to be against the proposition that appellant was required to give testimony; and we further find no testimony supporting such proposition. That is to say, that nothing thus heard, as far as this record reflects, suggests that appellant was required to testify, and no issue being made in no event would there have been need for the submission of the question to the jury.
We have no reason to believe that the statute involved, article 694, supra, evidences any tenderness on the part of the Legislature toward one charged with a violation of the liquor law, greater than toward one charged with rape, murder, burglary, etc., who makes a confession of his guilt in statutory form. We regard what we said in Medlock's Case, 108 Tex. Cr. R. 274, 1 S.W.(2d) 308, as correct and applicable.
Finding no error in the record, the judgment will be affirmed.
On Motion for Rehearing.
When the officer who searched the appellant's car and made the arrest was called as a witness for the state, the court, at the request of the appellant, retired the jury and heard testimony of Moreland (the arresting officer), whose direct and cross examination upon the hearing before the judge is set out in bill of exception No. 1, and covers several pages of the record. The testimony given by Moreland, if true, was deemed by the court to demonstrate the existence of probable cause for the search of the appellant's automobile and his arrest by reason of the discovery made in the search. The testimony so given before the court, including the direct and cross examination, in the judgment of this court, fails to present any issue of fact on the question of probable cause for the arrest and search. On the hearing mentioned the appellant did not testify but introduced his written confession.
In many cases the announcement has been made that where the evidence touching probable cause is without conflict, the question of probable cause was one for the court to determine. See Jenkins v. State (Tex. Cr. App.) 32 S.W.(2d) 848; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Weddle v. State, 112 Tex. Cr. R. 250, 16 S.W.(2d) 244; McPherson v. State, 108 Tex. Cr. R. 265, 300 S. W. 936; Glenniwinkel v. State, 114 Tex. Cr. R. 188, 21 S.W.(2d) 514; Borders v. State, 115 Tex. Cr. R. 35, 27 S.W.(2d) 173; Filpot v. State, 114 Tex. Cr. R. 278, 26 S.W.(2d) 202; Hurst v. State, 111 Tex. Cr. R. 245, 13 S.W.(2d) 95; Patterson v. State, 111 Tex. Cr. R. 242, 13 S. W.(2d) 97.
Appellant made a written confession which is in conformity with the statute on confessions when one is under arrest. It was not, however, introduced in evidence before the jury. The confession was made under the following circumstances, as revealed by the record: The appellant was in jail, under arrest, charged with the offense of transporting intoxicating liquor. The next morning after his arrest, he was brought by the officer in charge of him from the jail to the office of the county attorney. There were present the chief of police, a deputy sheriff, and a justice of the peace. The county attorney had previously been informed of the arrest of the appellant. A conversation took place as related by the county attorney, who said, in substance, that the appellant was brought into his office about the charges of which the county attorney had been informed on the night before by the witness Moreland, who arrested the appellant; that is to say, that the appellant's car had been searched and a quantity of whisky found therein which the appellant admitted he had transported. The appellant was asked by the county attorney what he wanted to do. The county attorney said it seemed that the appellant said he had been caught and that he did not think there was very much for him to do; that he had been caught and whisky found in his truck, and that there was not very much to be done. In that connection, the appellant was told that he had a right to make a statement about it, and if he wanted to, he could do so, but that he did not have to do so; that if he did make a statement it could be used against him but not for him, that is, the county attorney gave the statutory warning preliminary to a confession. The appellant then made the statement to the county attorney. The...
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