Guerrero v. State

• Decision Date: 11 May 1904
• Citation: 80 S.W. 1001
• Parties: GUERRERO v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 1001

GUERRERO v. STATE.

Court of Criminal Appeals of Texas.

May 11, 1904.

Appeal from District Court, La Salle County; E. A. Stevens, Judge.

Anesetto Guerrero was convicted of the theft of a hog, and he appeals. Reversed.

H. C. Lane, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with the theft of "one head of hogs." It is contended this is not a sufficient designation of the property, and not in compliance with correct pleading; that the charge should have been the theft of one hog. It is also contended the pleading is not grammatically correct; that "one head" is in the singular, and "hogs" is plural, denoting more than one. This criticism is hypercritical.

While under arrest, appellant was carried by the sheriff to a point where tracks were found upon the ground. These tracks were supposed to have been made by the person who killed the hog mentioned in the indictment. The sheriff testified he gave appellant the statutory warning as to what he might say, but did not warn him as to any act he might do or perform. It is made to appear that appellant does not understand English, and that the sheriff spoke Spanish very imperfectly. Appellant testified that he was not warned. "If I was, I did not understand." Here the bill of exceptions lets the matter rest. If the question of confession was the issue, we would be inclined to hold that this was not a sufficient warning. In order to make the confession admissible, the warning must be such as is understood by the accused, and is operating upon his mind or is present in his thought at the time of making the confession. That is, he must make his confession with the warning in mind. If appellant did not understand the remarks made by the sheriff, it would be no warning. If the sheriff warned him in the English language, it was clearly not understood by appellant. If in Spanish, it is uncontroverted that the sheriff spoke Spanish very imperfectly, and may not have made himself understood; and appellant swears that he did not understand he was warned. However, we believe that matter is not brought up by bill of exceptions. This bill shows that at the place where the track was, and at the time of the supposed warning and immediately thereafter, the sheriff ordered appellant to take his shoe from his foot. Appellant obeyed. The sheriff put it in the track, and it fitted exactly. This does not come within the rule of confessions provided by statute, as we understand the well-settled line of decision in this state. The distinction between this character of evidence and confessions, whether by word or acts, is clearly drawn in Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, where the doctrine laid down in Walker's Case, 7 Tex. App. 246, 32 Am. Rep. 595, is reaffirmed. See, also, Thompson v. State, 74 S. W. 914, 8 Tex. Ct. Rep. 32; Meyers v. State, 14 Tex. App. 35; Bryant v. State, 18 Tex. App. 107. This was not an act of appellant in the nature of a confession, as in Nolen's Case, supra, or in Fulcher's Case, 28 Tex. App. 465.

A serious question in the case is the omission of the court to charge the law applicable to circumstantial evidence. Witness Will McCombs, nephew of the alleged owner, testified that while riding in the Irvine pasture he heard four shots, and after an interregnum of time another. After hearing the five shots, he hitched his horse, and walked half a mile to near where he heard the shots. He came in sight of defendant hanging up a pig in the fork of a mesquite bush some 2½ or 3 feet...