Gardner v. State

• Decision Date: 28 March 1896
• Citation: 34 S.W. 945
• Parties: GARDNER v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 945

GARDNER v. STATE.

Court of Criminal Appeals of Texas.

March 28, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

John A. Gardner was convicted of murder in the first degree, and appeals. Reversed.

Harris & Knight, for appellant. Mann Trice and Stillwell H. Russell, for the State.

HURT, P. J.

Appellant stands convicted for murder of the first degree, and his punishment assessed at a life sentence in the penitentiary. He appeals to this court, asking for a reversal of the judgment upon a great many grounds. We desire to notice three subjects which are presented by the record: (1) The appellant being under arrest for this crime (whether cautioned, or not, as required by the statute), can his silence or failure to deny statements made in his presence be used against him, as a confession of the truth of the statements? (2) On a former trial of this cause before the district court, Virgil Young and John Watkins testified (for the state) to important facts in support of the prosecution. At the last trial the state having shown that these witnesses were permanently beyond the process of the court (being in other states), can their evidence be reproduced by witnesses who heard them testify, or by the stenographer's notes? (3) If permanent absence from the state be a predicate, upon proof of which the testimony of the absent witnesses may be reproduced at common law, can this be done upon such a predicate in this state, under the provisions of article 25, Code Cr. Proc.?

1. As to the first question: The appellant had stated to the sheriff, Ben. E. Cabell, that he was at several places on the night of the homicide. If this statement was true, his presence at the place of the homicide was very improbable. Being under arrest, Cabell took him to those places, and the persons staying or doing business there, in the presence of appellant, stated to Cabell that appellant was not there at the time he had told Cabell he was. Appellant made no reply to these statements. All that Cabell did, all that these persons who resided at the places named by appellant to Cabell stated, and the silence of the appellant, were introduced in evidence against appellant, as confessions of appellant to the truth of these statements. Were these facts, and especially the silence of appellant, competent evidence? They were not. In Com. v. McDermott, 123 Mass. 440, it is held: "A person who is held in custody on a charge of crime is not called upon to contradict statements, prejudicial to him, made in his presence by another person in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him." This case cites Com. v. Kenney, 12 Metc. (Mass.) 235; Com. v. Walker, 13 Allen, 570. To give silence the effect of an admission, the party charged with it must have been in a position to explain. If the party is under arrest, his silence cannot be used as sustaining the hypothesis of acquiescence thereto. See Whart. Cr. Ev. 680; U. S. v. Brown, 4 Cranch, C. C. 508, Fed. Cas. No. 14,660; Bob v....