Davis v. State

• Decision Date: 25 February 1925
• Docket Number: (No. 8665.)
• Citation: 270 S.W. 165
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

270 S.W. 165

DAVIS v. STATE.

(No. 8665.)

Court of Criminal Appeals of Texas.

February 25, 1925.

Rehearing Denied April 1, 1925.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Jack Davis was convicted of burglary, and he appeals. Affirmed.

W. F. Nix and A. M. Mood, both of Amarillo, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of two years.

Morton, the owner of the premises, testified that his house was entered and certain property removed therefrom. Noel, an accomplice, testified that he received from the appellant certain property belonging to Morton and which was identified by him as having been stolen from the burglarized premises. Appellant, at the time of the arrest, had in his possession property which was also identified as part of the stolen goods. There were other circumstances tending to connect the appellant with the commission of the offense.

A reversal is sought upon the claimed error of the court in admitting in evidence the confession of the appellant. It appears that appellant while under arrest and in jail was brought in custody of an officer to the grand jury, which was in session, and there admitted the commission of the offense. His testimony was not reduced to writing, but was verbal and proved by the foreman of the grand jury upon the trial of the case. Objection to the testimony was made and a bill of exceptions reserved to its receipt. Qualifying the bill, however, the trial court said in substance that, at the time the testimony was offered in evidence, he was not informed that the confession had been obtained while the appellant was under arrest, and no objection had been urged against it upon that ground, that he did not know that the testimony was of that character. On the motion for new trial, appellant sought to prove and offered witnesses who would have testified that he was under arrest, was taken from the jail to the grand jury, and there made the statement showing his guilt. Under the bill of exceptions taken at the time, as qualified, there was no fact within the knowledge of the court or objection addressed to the bill which would render his action in receiving it erroneous. The procedure which the record reflects, that is, the taking of a witness before the grand jury while he is under arrest and obtaining from him a verbal confession not in compliance with the statute, is a practice which this court would not by any means sanction, and in the present case, if there was not other evidence warranting the conviction, or if there was testimony justifying an acquittal, this court would feel called upon to reverse the case because of the error of the trial court in refusing to receive proof upon the motion for new trial, which would have demonstrated that the confession which was introduced in evidence against the appellant was illegal, and was not admissible. The fact that the confession was made before the grand jury does not necessarily render it admissible when it is not in writing as required by the statute (article 810, C. C. P.). See Oliver v. State, 81 Tex. Cr. R. 529, 197 S. W. 185; Dover v. State, 81 Tex. Cr. R. 545, 197 S. W. 192; Mayzone v. State, 88 Tex. Cr. R. 98, 225 S. W. 55; Williams v. State, 88 Tex....