McCandless v. State, No. 40917

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ONION
• Citation: 425 S.W.2d 636
• Parties: James McCANDLESS, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 40917
• Decision Date: 28 February 1968

Page 636

425 S.W.2d 636 James McCANDLESS, Appellant,
v.
The STATE of Texas, Appellee. No. 40917. Court of Criminal Appeals of Texas. Feb. 28, 1968.
Rehearing Denied April 10, 1968.

Paul W. Anderson, Reagan Huffman, Marshall, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, life.

The indictment charged the appellant with the murder of his wife, Geraldine, on July 29, 1966, by drowning her in water (in a well).

At the outset appellant challenges the admissibility of both his oral and written confessions. It is his contention that neither confession meets the standards required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, applicable since the trial commenced on February 14, 1967, long after the effective date of such decision (June 13, 1966). See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Evans v. United States, 375 F.2d 355 (8th Cir); Fendley v. United States, 384 F.2d 923 (5th Cir).

It will therefore be necessary for us to examine the facts at some length.

N. F. Shivers, a deputy sheriff of Harrison County, testified that on July 30, 1966, at 6:30 a.m. he received a call that the deceased was missing, and went immediatly to the home of Charlie Hayner, an 85-year-old invalid by whom Mrs. McCandless was employed as nurse-maid, and where she lived for six days each week. Upon arrival Shivers found Mr. Hayner's daughters and the appellant (who did not live there) present. He discovered that the deceased's bed was bloody and there were signs of a struggle; that her suitcase and other possessions were missing, with the exceptions of her glasses, Bible and one dress belt. While there he learned from Mrs. Wyatt Moore, one of Mr. Hayner's daughters, that the appellant and the deceased had been having marital difficulties and that two weeks before appellant had tried to choke the deceased 'to death.'

Appellant was then requested to meet Shivers at the courthouse in Marshall, whereupon they went to the District Attorney's office. There appellant was informed that he was under investigation and his consent to take a polygraph test was obtained. Observing abrasions on the appellant's ear and hand and what appeared to be dried blood on his fingernails, Shivers gave appellant a 'pretty good manicure' following their return to the Sheriff's office. At some time while the appellant was in the courthouse, Shivers made an inspection of the tires on appellant's station wagon parked nearby. At approximately the time appellant left the courthouse, Deputy Sheriff Shivers related that he received a call that the body of a woman had been found in a water well of a church near Leigh, Texas.

The District Attorney, Shivers, and other officers went immediately to the scene where Shivers assisted in removing the body from the well. While there Shivers observed nearby tire tracks identical to those of appellant's station wagon and took pictures thereof.

Thereafter it appears that the District Attorney radioed ahead to certain police officers. At approximately high noon a City of Marshall policeman arrived at appellant's house and informed him that the District Attorney was on his way and that appellant was to 'stay here.' The officer remained outside the house in his patrol car until the arrival of the District Attorney. Upon arrival the District Attorney walked through appellant's house looking around and then he and a deputy sheriff carried appellant to the Sullivan's Funeral Home where appellant identified the body of a woman taken from the well as his wife. Following such identification the District Attorney took appellant and an employee of the funeral home into an

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ante-room, where appellant, after being told again that he was under investigation, orally stated that he had killed his wife and had burned her belongings in another part of the county from where he had left her body in the well.

The District Attorney testified that thereafter he called officers from the courthouse who came to the funeral home and arrested appellant. At such time appellant then led the officers to an isolated spot where they recovered a burned portion of a suitcase, etc.

Appellant was booked into the county jail at 3:14 p.m. on Saturday, July 30, 1966. It appears at 8:40 a.m. on Sunday, July 31, 1966, that the appellant was taken before J. G. Stauts, a Justice of the Peace in Harrison County. Thereafter it appears a written confession was obtained from the appellant by the District Attorney.

In answer to appellant's claim that the oral confession was inadmissible it is the state's theory that the appellant was not under arrest or subjected to custodial interrogation at the time of his oral statement, or if he was, the requirements of Article 38.22, Vernon's Ann.C.C.P. as to oral confession have been satisfied.

We need not, however, decide the question for we observe that it was the appellant, not the state, who elicited evidence as to the oral confession in the presence of the jury. No error is perceived.

We now turn our attention to the admissibility of the written statement.

The warning portion of appellant's rather lengthy statement dated July 31, 1966, in which he admitted placing his wife in the well after choking her, reads:

'I, James McCandless, after being duly warned by Charles A. Allen, the person to whom this statement is made, that I have a right to retain a lawyer, which I hereby waive, that I do not have to make any statement at all and that any statement made by me may be used in evidence against me on my trial for the offense concerning which the confession is...