Dover v. State

• Decision Date: 27 June 1917
• Docket Number: (No. 4463.)
• Citation: 197 S.W. 192
• Parties: DOVER v. STATE.
• Court: Texas Court of Criminal Appeals

197 S.W. 192

DOVER v. STATE.

(No. 4463.)

Court of Criminal Appeals of Texas.

June 27, 1917.

Appeal from Tarrant County Court; Jesse M. Brown, Judge.

Cleve Dover was convicted of larceny, and appeals. Reversed and remanded.

Mays & Mays, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted for stealing an overcoat from Mr. Waldrip at a dance a certain night in December, which was of less value than $50, a misdemeanor. The evidence was amply sufficient to sustain the conviction. On the other hand, if appellant and his witnesses had been believed, it was ample to have authorized his acquittal. It is unnecessary to recite it.

Appellant himself testified that about three days after the dance, while walking along the Frisco tracks going to his home in North Ft. Worth, he met a man who said he was "broke" and that he lived in Oklahoma, and asked him if he would buy the overcoat he had on his arm, and that he then did buy it from him and paid him $2 therefor. The evidence shows that appellant was wearing the overcoat alleged to have been stolen at the time he was arrested, and while under arrest and just after his arrest, the state was permitted to prove by the two officers who arrested him that at the time he told them he bought the coat out at the reservoir from an unknown man and paid him $2 for it. This testimony was objected to by appellant at the time for the reason that he was under arrest, and his said claimed statement to the officers was therefore inadmissible. The court admitted the testimony under the authority of Whorton v. State, 69 Tex. Cr. R. 4, 152 S. W. 1082, and Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, and authorities therein cited, holding that it was not a confession, but an exculpatory statement, and not prohibited from introduction by the statute. In said Cases of Whorton and Mason, supra, this court, in the opinions therein by Judge Harper, reviewed the authorities on this question, showing that the decisions of this court on the subject had theretofore been conflicting, and therein held, in accordance with the very great weight of authority and in accordance with several decisions of this court, that exculpatory statements such as were introduced in this case were admissible and were not prohibited by our statute (articles 809, 810, C. C. P.). What was said by this court in said Cases of Whorton and Mason on this subject will here be quoted. In the Whorton Case we said:

"Mr. Bouvier in his Law Dictionary defines a `confession': `The voluntary declaration made by a person who has committed a crime to another of the agency or participation which he had in the same. An admission or acknowledgment by a prisoner that he committed the crime with which he is charged.' In Cyc. vol. 8, p. 562, a confession is thus defined: `The acknowledgment of some fact, of a fault or wrong, or of an act or obligation adverse to one's reputation or interest; an admission of something done antecedently. At common law an admission of a cause of action. In criminal law a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it; the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same; a person's declaration of his agency or participation in a crime; an acknowledgment of guilt; the acknowledgment of a crime or fraud.' In this work are cited many authorities, among which is People v. Miller, 122 Cal. 84 , wherein the Supreme Court of that state said: `In our law the term "admission" is usually applied to civil transactions, and to those matters of fact in criminal cases which do not involve criminal intent; the term "confession" being generally restricted to acknowledgment of guilt,'—citing Greenleaf, Ev. § 170.

"In the Am. & Eng. Ency. of Law, vol. 6, p. 521, the definition is thus given: `A confession is a voluntary admission or declaration by a person of his agency or participation in a crime. The term "confessions" is not the mere equivalent of the words "statements" or "declarations." A statement or declaration to amount to a confession must be inculpatory and not exculpatory in its nature. Thus statements made by persons indicted together for the same offense, by which each charges the other without inculpating himself, and makes no reference to anything done in common as charged, are not confessions. Confessions as distinguished from admissions are acknowledgements of facts criminating in their nature, and not mere declarations against interest. Moreover, a confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgments of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions rather than confessions.' Under this text are cited authorities from almost every state in the Union.

"In Words and Phrases the word `confession' is said to mean: `A "confession" is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt. A confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgments of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions, rather than confessions. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.' On pages 1418 and 1419, vol. 2, will be found a long list of authorities supporting this text.

"We have cited these authorities, for in our own decisions there is some conflict. Some cases hold that exculpatory statements are included in the statute governing the admissibility of confessions, while in a number of other cases the law is held as announced in the above authorities. Our present presiding judge (Davidson) in a well-considered case announced the law in accordance with these decisions. In the case of Ferguson v. State, 31 Tex. Cr. R. 93 he said:

"`The statute (article 750 [810] of the Criminal Procedure) relates to confessions only, and does not extend to nor include within its meaning and provisions statements exculpatory of the defendant. A confession is inculpatory evidence, which connects or tends to connect the defendant, either directly or indirectly, as a guilty participant in the offense charged. Quintana v. State, 29 Tex. App. 401 [16 S. W. 258, 25 Am. St. Rep. 730]; Willard v. State, 26 Tex. App. 126, 9 S. W. 358; Eckert v. State, 9 Tex. App. 105; Andrews v. State, 25 Tex. App. 339 .

"`The statement made by defendant did not admit his guilt, and was not so intended by him when he made it. It neither connected nor tended to connect defendant with the theft, but, on the contrary, it was intended to exclude and rebut such inference. Instead of being an admission or confession of his guilt, it was intended as a denial of that fact. Same authorities.

"`Such statements are made as well for the purpose of showing the absence of guilt as to manifest an innocent connection with the possession of the alleged stolen property by a defendant, and are intended to operate as exculpatory of guilt and crime. This character of evidence is elicited for the purpose of explaining the defendant's possession of the property, when his right thereto is called in question. While contradictory statements made by a defendant, as to his possession of property recently stolen, may be given in evidence, yet such statements have not been held to be "confessions" of guilt under the statute. If such accounts are to be treated as confessions of guilt, it would not devolve upon the state to disprove them, as a prerequisite to a conviction, nor would the court be authorized or required to charge the jury that such account must be disproved in order to warrant a conviction. Eckert v. State, 9 Tex. App. 105.'

"Many cases besides those cited in this opinion might be referred to, but we deem it unnecessary, as the rule is so clearly stated in the Ferguson Case. However, in the case of Morales v. State, 36 Tex. Cr. R. 234 , the Quintana Case in 29 Tex. App. 401 [16 S. W. 258, 25 Am. St. Rep. 730], and other cases holding that the confessions of a defendant made while under arrest, although not taken in conformity with the statute, were admissible, were overruled, but the court expressly limited its action to those instances where the statements offered were confessions of guilt, the court in the Morales Case stating: `The matter inquired about in this case was a confession, and it is not necessary here to discuss the question involved in the cases above referred to as to whether the statements there made by the defendants were in the nature of a confession or not'—in the Morales Case the court only holding that a statement in itself of a confession of guilt was inadmissible if not taken in conformity with the statute, even though the defendant became a witness, pretermitting altogether a discussion of whether or not exculpatory statements were included in the statute governing admissibility of confessions. And yet in some instances this case has been sought to be used as excluding exculpatory confessions, when a careful reading of it will demonstrate it does not so hold. This question is again discussed in Parks v. State, 46 Tex. Cr. R. 100 , and it again held if the statements are inculpatory they are not admissible, and in some of the cases it may be said that the language used is broad enough to include exculpatory as well as inculpatory statements under the statute governing confessions, and...