McCain v. State, 20906.

• Decision Date: 13 March 1940
• Docket Number: No. 20906.,20906.
• Parties: McCAIN v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W.2d 613

McCAIN v. STATE.

No. 20906.

Court of Criminal Appeals of Texas.

March 13, 1940.

On Rehearing May 15, 1940.

Second Rehearing Denied June 26, 1940.

Appeal from District Court, Hardin County; Thos. B. Coe, Judge.

J. C. McCain was convicted for burglary, and he appeals.

Affirmed.

A. L. Bevil, of Kountze, for appellant.

R. M. Briggs, Dist. Atty., of Kountze, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

This is an appeal from the judgment of the District Court of Hardin County convicting appellant of the offense of burglary and assessing his punishment at two years in the penitentiary.

For the conviction in this case the State relies principally on the written confession of the appellant while under arrest. From this confession we quote the following: "I, J. C. McCain, being in the custody of M. D. Jordan, Sheriff, and being duly warned by R. M. Briggs, Dist. Atty., (the person to whom this statement is made), first, that I do not have to make any statement at all, and, second, that any statement I do make must be freely and voluntarily made and may be used in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following free and voluntary statement", etc.

It will be noted that this statement does not comply with the statute in that it does not say, as required, that the statement could be used "against him". Vernon's Ann.C.C.P. art. 727. It merely says that it can be used "in the trial or trials of the offense or offenses concerning which this statement is made"; and so far as the warning is concerned, the appellant might have concluded that it could be used either for or against him. It has been frequently held that the warning must be given in accordance with the statute. Branch's Ann.Tex.P.C., Title I, Sec. 61, p. 33. It has been particularly held that where the warning stated that the confession could be used "for or against" the defendant, it is not a sufficient compliance with the statute. McVeigh v. State, 43 Tex.Cr.R. 17, 62 S.W. 757; Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733.

The written confession in this case contains the statement that it may be used in the trial of any case to which the statement pertains but does not limit the use, and it may as well be reasoned in the instant case that the party making it understood that it could be used for him as if he had said "for or against". The statute is specific that one must be warned that the statement could be used against him. In construing this statute, this court has frequently held that such confession, when properly made, may be used against the party making it and not for him. A warning which states that the confession may be used for him having been held to be reversible error, we view the language in the confession before us to be of sufficiently similar effect to justify the application of the same rule.

For the error of the court in admitting the statement, the case is reversed.

On Motion for Rehearing.

GRAVES, Judge.

This case was heretofore reversed and remanded because of the admission of a written statement purportedly made by the appellant while under arrest, which statement failed to state in the warning portion thereof that same could be used "against him" at the trial, etc. In our original opinion the cases there cited support by analogy the doctrine that such warning should have contained the omitted phrase. The State in its motion, however, advances the proposition that such an omission is not fundamental, but in the event such a statement is not objected to on the grounds of such an omission, then that objection thereto is waived. The objection to the introduction of this confession offered by appellant's attorney is as follows: "Which testimony was objected to by the defendant, at the time it was offered, for the reason that said statement was not voluntary rendition of the facts speaking through the agency of defendant but was in answer to questions propounded to the defendant by the district attorney, the answers to which questions were recorded in pencil by said district attorney, and then dictated to the stenographer in the verbiage of the district attorney."

It will be observed that nowhere in such objection is there stated that the warning given by the person to whom the statement was made was inadequate, and nowhere therein was it stated that the warning failed to state that same could be used against appellant on his trial.

We think that the correct doctrine is laid down in 4 Tex.Jur., p. 59, wherein it is said: "Indeed, in the absence of an objection in the trial court, the appellate court will ordinarily uphold a judgment supported by the evidence even though all the supporting evidence might have been held to be inadmissible on proper objection."

In the case of Williams v. State, 120 Tex.Cr.R. 484, 48 S.W.2d 304, 306, on motion for a rehearing we said: "Appellant also urges that his confession ought not to have been received in evidence because it was signed by him with his mark, and that the state failed to show it had been witnessed by parties other than peace officers, as required by article 727, C.C.P. No such objection seems to have been interposed when the confession was offered in evidence. In Walker v. State, 53 Tex.Cr.R. [336], 337, 110 S.W. 59, 60, this court was construing the very statute which is now article 727, C.C.P. We quote from said opinion as follows: `In order to have taken advantage of the act of the Thirtieth Legislature (Laws 1907, p. 219, c. 128) in regard to confessions, objection should have been interposed at the time the confessions were offered. It is not sufficient for objection to be raised for the first time on motion for a new trial.'"

In the case of Walker v. State, 53 Tex. Cr.R. 336, 110 S.W. 59, 60, we find that Judge Davidson said: "Nor can the suggestion of appellant in his motion for a new trial be considered, to the effect that the confessions were erroneously admitted. No exception was taken at the time, nor was the matter called to the attention of the court, so far as the record is concerned, until the motion for a new trial was made. In order to have taken advantage of the act of the Thirtieth Legislature (Laws 1907, p. 219, c. 128) in regard to confessions, objection should have been interposed at the time the confessions were offered. It is not sufficient for objection to be raised for the first time on motion for a new trial."

In the case of Davis v. State, 99 Tex. Cr.R. 477, 270 S.W. 165, 166, Judge Morrow held: "A reversal is sought upon the claimed error of the court in admitting in evidence the confession of the appellant. It appears that appellant while under arrest and in jail was brought in custody of an officer to the grand jury, which was in session, and there admitted the commission of the offense. His testimony was not reduced to writing, but was verbal and proved by the foreman of the grand jury upon the trial of the case. Objection to the testimony was made and a bill of exceptions reserved to its receipt. Qualifying the bill, however, the trial court said in substance that, at the time the testimony was offered in evidence, he was not informed that the confession had been obtained while the appellant was under arrest, and no objection had been urged against it upon that ground, that he did not know that the testimony was of that character. On the motion for new trial, appellant sought to prove and offered witnesses who would have testified that he was under arrest, was taken from the jail to the grand jury, and there made the statement showing his guilt. Under the bill of exceptions taken at the time, as qualified, there was no fact within the knowledge of the court or objection addressed to the bill which would render his action in receiving it erroneous." And again on motion for a rehearing it was said by Judge Lattimore: "It is so well settled by the decisions of the courts, and with such apparent reason and justice, that one who is on trial may not sit by and permit procedure to take place, and thus take chances upon an acquittal under the facts before the court and in that manner of trial, and then come later, after he has been convicted, and assert that he should have taken other legal steps, or should have made certain exceptions, or should have presented an objection. To hold otherwise than as we have universally held in regard to procedure of this kind would necessarily be an exceedingly dangerous innovation, and would open the door for interminable contention along these lines. It appears without dispute that this appellant had his day in court; that he and his attorney sat there in the presence of the court and heard the grand jurors testify to the fact that he came before the grand jury apparently voluntarily and said he wanted to make a statement; and that he then admitted his guilt and said that he burglarized the house, and burglarized it by himself. The attention of the trial judge was not called in any way to the fact that at the time such statements were made he was under arrest. How could the court sustain an objection that was not made? How can the trial judge or this court consistently hold that one may indulge in such procedure and then...