Hext v. State

• Decision Date: 17 March 1926
• Docket Number: (No. 9976.)
• Citation: 282 S.W. 242
• Parties: HEXT v. STATE.
• Court: Texas Court of Criminal Appeals

282 S.W. 242

HEXT v. STATE.

(No. 9976.)

Court of Criminal Appeals of Texas.

March 17, 1926.

Rehearing Denied April 21, 1926.

Commissioners' Decision.

Appeal from District Court, Cottle County; J. H. Milam, Judge.

Bob Hext was convicted of murder, and appeals. Reversed and remanded.

James M. Whatley, of Paducah, W. D. Wilson, of Spur, G. E. Hamilton, of Matador, and Williams & Martin, of Plainview, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The offense is murder, and the punishment is 25 years in the penitentiary.

This is the second appeal of this case. Disposition of the first appeal will be found in 271 S. W. 81, 100 Tex. Cr. R. 24, where a sufficient statement of the facts is recorded.

Appellant complains at the court's action in refusing to give the statutory definition of an accomplice and to affirmatively instruct the jury that, if defendant was only an accomplice, he could not be convicted under the indictment in this case. The charge of the court failed utterly to submit this issue to the jury and defendant excepted to the court's failure to do so, and such failure was manifestly error. Bean v. State, 17 Tex. App. 60; Phillips v. State, 167 S. W. 353, 73 Tex. Cr. R. 627; McAlister v. State, 76 S. W. 760, 45 Tex. Cr. R. 258, 108 Am. St. Rep. 958; Davis v. State, 117 S. W. 159, 55 Tex. Cr. R. 495; Jones v. State, 122 S. W. 31, 57 Tex. Cr. R. 144; Menefee v. State, 149 S. W. 138, 67 Tex. Cr. R. 201. From these cases the following rule is easily and clearly deducible, to wit:

If an appellant furnishes the means by which a homicide is committed by others, but is absent at the time of its commission, and is not then doing something in furtherance of the common design under the law of principals, so as to make him constructively present, then appellant cannot be convicted as a principal under our statute and under an indictment charging him as a principal with the commission of the offense. In this connection, we think it clear that, in addition to the foregoing charge, the jury under the peculiar facts of this case should have been instructed clearly and pertinently that, if another or others committed this offense without the guilty participation of the appellant, then he would not be guilty. Dubose v. State, 10 Tex. App. 230; Kirby v. State, 93 S. W. 1030, 49 Tex. Cr. R. 517; Wheeler v. State, 121 S. W. 166, 56 Tex. Cr. R. 547; Ward v. State, 158 S. W. 1126, 71 Tex. Cr. R. 310.

Appellant also complains at the court's action in permitting the witness Jones to testify in effect that the appellant told him, while appellant was in jail and in the custody of Jones, the sheriff of Dickens county, that he had not purchased any strychnine on or about the 29th day of May, 1924, nor at any other time. On a former appeal of this case, the present presiding judge of this court held that this testimony was not admissible. It is clear and certain that the appellant was under arrest and in the custody of the very witness who gave this testimony at the time the statement is alleged to have been made, and, under the statute and authorities in this state, the testimony should have been excluded. Article 810, Vernon's C. C. P.; Reynolds v. State, 199 S. W. 636, 82 Tex. Cr. R. 443; Clark v. State, 207 S. W. 98, 84 Tex. Cr. R. 390; Brown v. State, 213 S. W. 658, 85 Tex. Cr. R. 493; Dover v. State, 197 S. W. 192, 81 Tex. Cr. R. 545. As above stated, this identical question was passed on by this court on a former appeal of this case, and it is to be presumed that the trial court recognizes the rule that the holding on a former appeal is the law of the instant case and on another trial will not overlook the necessity of excluding this testimony.

As the evidence in this case may be different on another trial, we do not deem it necessary or proper to discuss its sufficiency in the instant case.

For the errors discussed, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Jones, the sheriff, was permitted to testify that, after the appellant's arrest and while he was in jail, he had a conversation with the said Jones in which he said that he had not purchased any strychnine at Spur on the evening of the 29th of May, 1924. He said that he did not purchase any strychnine; that he had not been in the drug store for some two or three weeks; that he had purchased no strychnine from Jack Slayton. On the former appeal, the opinion was expressed that this testimony was not admissible. See 271 S. W. 81, 100 Tex. Cr. R. 27. It was received upon the present trial over the objection of the appellant, and state's counsel insists that it was properly received. The statute inhibits the use against one accused of crime of a confession made while under arrest, unless it comes within some of the exceptions embraced in the statute. See Vernon's Tex. Crim. Stat. vol. 2, art. 810; Revision of 1925 (Code Cr. Proc.) art. 727. The purpose and effect of the statute is to prevent the prosecution from using, against the accused, by the testimony of the officer having him under arrest, of a verbal statement made by the accused which the state seeks to use in proving the guilt of the accused. This we understand to be the effect of many decisions of this court. See Hernan v. State, 60 S. W. 766, 42 Tex. Cr. R. 464; Bailey v. State, 49 S. W. 102, 40 Tex. Cr. R. 150; Dover v. State, 197 S. W. 192, 81 Tex. Cr. R. 554, and numerous cases therein cited. See, also, Riley v. State, 264 S. W. 664, 93 Tex. Cr. R. 206; McClure v. State, 251 S. W. 1099, 95 Tex. Cr. R. 61; Hill v. State, 255 S. W. 433, 95 Tex. Cr. R. 501; Brent v. State, 232 S. W. 845, 89 Tex. Cr. R. 545; Dodd v. State, 198 S. W. 783, 82 Tex. Cr. R. 139; Willoughby v. State, 219 S. W. 468, 87 Tex. Cr. R. 40; Mayzone v. State, 225 S. W. 55, 88 Tex. Cr. R. 98. From Branch's Ann. Tex. P. C. § 59, we take the following statement:

"The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by defendant while in confinement or custody, and not having been properly warned, which may be used by the state as a criminative fact against him."

Supporting this analysis of the decisions, Mr. Branch cites many cases, among which are Johnson v. State, 66 S. W. 845, 43 Tex. Cr. R. 476; Fulcher v. State, 13 S. W. 750, 28 Tex. App. 465; Williams v. State, 10 Tex. App. 527; Parks v. State, 79 S. W. 301, 46 Tex. Cr. R. 104. In many of the cases cited by Mr. Branch, and referred to above, the effort was, as in the present case, to obviate the force of the statute by the contention that the declaration imputed to the accused was exculpatory upon its face. In the present case, the appellant did not testify, but, even if he had done so, his declaration, while under arrest, though not complying with or coming within any of the requirements of the confession statute, was not available for impeachment purposes. See Bailey v. State, 49 S. W. 102, 40 Tex. Cr. R. 151; Hill v. State, 161 S. W. 118, 72 Tex. Cr. R. 111; Williams v. State, 231 S. W. 110, 89 Tex. Cr. R. 339; Am. Law. Rep. vol. 9, p. 1360, note; Morales v. State, 36 S. W. 435, 846, 36 Tex. Cr. R. 234—overruling previous contrary announcements. This testimony was used against the appellant in connection with the testimony of other witnesses for the state, asserting that appellant had purchased strychnine on a certain occasion.

The indictment charged that the appellant mixed poison with medicine with the intent to kill Pete Hext. To convict under this indictment, the proof must show that the appellant actually put poison in the medicine, or that he was connected with the transaction in such a way as to render him a principal offender under some of the provisions of the statute defining a principal offender. See Vernon's Tex. Crim. Stat. vol. 1, arts. 75, 76, 77, and 78.

Appellant insists that, if he had guilty connection with the death of the deceased, the evidence goes no further than to put him in the position of an accomplice. The facts, as they appeared upon the former appeal, are summarized in the opinion. See 271 S. W. 81, 100 Tex. Cr. R. 24.

The evidence in the former appeal is not exactly the same as that in the present instance. To connect ...