Hickman v. State

• Decision Date: 20 March 1912
• Parties: HICKMAN v. STATE.
• Court: Texas Court of Criminal Appeals

145 S.W. 914

HICKMAN v. STATE.

Court of Criminal Appeals of Texas.

March 20, 1912.

Rehearing Denied April 10, 1912.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Mulkey Hickman was convicted of burglary, and he appeals. Affirmed.

H. E. Trippet, R. Q. Murphree, and Langford & Chesley, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, prosecuted, and convicted of burglary, and his punishment assessed at two years in the penitentiary.

It appears that the store of the Rotan Grocery Company at Hico was being burglarized, and the manager and night watchman of the town found one of the doors unlocked one Saturday night about the 8th of May. About 3 o'clock next morning, the two went in the store to keep watch. Mr. Carlton stationed himself at a point on the outside. About daylight appellant was seen to drive up in a buggy, get out, and go in at this door that was open. When he got inside, he heard a noise, struck a match, and saw the manager and night watchman, when he remarked, "Well, you fellows have caught me." Mr. McMillan, the watchman, asked him what he was doing in there, when he ansywered, "Well," he had just come in after his knife. It appears that prior to February 18th appellant had been working in the store, and on the trial he claimed, when he quit in February, he left a knife in the store, and had gone there after it. At the time he was found in the store, he asked what the men were going to do with him; Mr. McMillan replying: "Let's get out of here." Appellant got in his buggy, and drove around to front of the building, when Mr. Carlton came up. Mr. Carlton was placed on the witness stand, and testified: "That all three of them —that is, the defendant, Marshal McMillan, and Ruby French—came out of the house in not more than two minutes after the witness had seen defendant enter at the door, and then, being asked by the district attorney, `Was there anything said by the defendant at that time?' after they came out on the sidewalk, the defendant just remarked to me, `I have played hell.' I think that was all he said directly to me. I do not know what all he did say. He then asked us to say nothing about it; that he `guessed they would fine him.' He said he guessed Rodgers would fine him, and, if he did, he would pay the `fine.' Thereupon the district attorney asked the witness, `Did he say anything about getting something to eat?' and the witness replied: `I did not ask him that question. I think that Rodgers or McMillan asked him what he was doing in there, and he said that he was there to get something to eat.' I asked him the question, `How came the door unlocked?' And he said that another fellow left it unlocked. It was Ed Wilson that he tried to implicate. He was working there at the time, and he said Ed Wilson fixed the door, and that he was to come that night, and he himself was to go next morning, and then he dropped his head a little and said, `That ain't right; that is a lie,' and then said, `There is no use trying to get somebody else in trouble, and I won't do it.' And then he said that he `went in the building that evening before the men went out and locked up, and said that he secreted himself, and, when they went out, he got up and went out and left the door that way.' To which several questions and answers thereto the defendant objected because at the time of making the statements attributed to him the defendant was in the custody of the officers, had not been warned as required by law, and the same were not in writing, and the court overruled said objections, and said evidence was admitted and considered by the jury." The court in approving the bill says: "The above evidence was admitted as part of the res gestæ. While the evidence showed Carlton and McMillan were officers, no formal arrest was shown up to the time of making statement to Carlton. In fact, defendant's evidence shows he did not know officers intended to detain him up to that time. What defendant said to Carlton was but a part of what he said to French and McMillan when he was caught in the house and a continuation of the same conversation and a part of it. This statement was within two minutes from the time the defendant had entered the alleged burglarized house, and even if under arrest would have been and was res gestæ, as was ruled by the Court of Criminal Appeals in Powers v. State, 23 Tex. App. 42-67 ; Weathersby v. State, 29 Tex. App. 307 ; Miller v. State, 31 Tex. Cr. R. 637 [21 S. W. 925, 37 Am. St. Rep. 836]; Gantier v. State, 21 S. W. 255. With this explanation the bill is approved and ordered filed, and made a part of the record."

Appellant accepts this bill as thus qualified and filed, and under it we must presume that at the time he did not know the officers intended to detain him, because the qualification of the court is binding upon us, when not excepted to by appellant. And his qualification appears to be supported by the evidence.

The witness was asked by the court: "Had you told him before he made these statements to you that you would not let him go? Ans. No, sir. I had not said anything to him about detaining him when he made these statements. No one else had said anything about detaining him in my presence." It has been held by this court that whatever be the intention of the officer, if he had not arrested defendant, and defendant was not apprised of his intention to do so at the time he made the statements, they are admissible. It is not the intention of the officer that governs. Hart v. State, 15 Tex. App. 230, 49 Am. Rep. 188; Cordes v. State, 54 Tex. Cr. R. 210, 112 S. W. 943; Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 593; Martin v. State, 57 Tex. Cr. R. 264, 122 S....