McCurley v. State

• Citation: 296 S.W. 559
• Decision Date: 01 June 1927
• Docket Number: (No. 10874.)
• Parties: McCURLEY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

296 S.W. 559

McCURLEY v. STATE.

(No. 10874.)

Court of Criminal Appeals of Texas.

June 1, 1927.

Commissioners' Decision.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Otis McCurley was convicted of burglary, and he appeals. Affirmed.

Butler, Price & Maynor, of Tyler, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

The appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary.

The record discloses that the appellant was charged by indictment with unlawfully and fraudulently breaking and entering a railroad car, on or about October 26, 1926, in the possession, actual care, control, and management of C. E. Wood, with the intent to commit the offense of theft. It appears that Wood was a local agent for the International & Great Northern Railway Company, at Tyler, Tex., and that the box car in question contained local freight billed to Tyler and other points along the International & Great Northern. On the day preceding the alleged burglary, the Cotton Belt Railway Company delivered this car to the International & Great Northern, at Tyler; Wood receiving it as agent for the latter company. The car was opened and "worked out" by employees of the International & Great Northern, who checked the contents and took out such freight as was billed to Tyler, and then the car was closed and resealed by said employees in the evening prior to the night of the alleged burglary. The burglary was discovered about 8 o'clock on the following morning. The door of the car was open and a great many articles were missing therefrom, including cartons of cigarettes consigned to the Moore Grocery Company, a corporation at Palestine, Tex. A short time after the alleged burglary, and before the appellant was arrested, he had two or three conversations with the chief of police, Tarbutton, in which he stated and admitted that he and Horace Harris took goods, including cigarettes and other articles, from the car in question. Appellant also went with the policeman and a detective employee of the railway company to a point about three miles out of Tyler, and showed them where some of the goods were concealed, and assisted them in recovering same, which included a quantity of cigarettes identified as having been in the burglarized car and missing therefrom after the alleged burglary. Appellant then told the officers where they would find other articles, which were later recovered by reason of said information.

While the appellant did not testify, he defended upon the ground that the statements and admissions made by him were obtained through deceit and fraud and upon a promise of immunity from prosecution made to him by Butler, a railway detective. It was his further contention that he did not receive any warning before making said admissions and statements; that they were not reduced to writing and were not voluntarily made; and that the evidence was insufficient to show that he committed the actual breaking and burglary of the car in question.

The record contains 15 bills of exception. Bills 1, 2, and 3 complain of the action of the court in permitting the policeman Tarbutton to testify regarding the admissions and statements made to him by appellant, as above set out, and regarding appellant's going with him and showing him where the stolen goods were concealed. Appellant contends that said statements and admissions were obtained by fraud, deceit, and a promise of immunity from prosecution made by the detective Butler, and that said statements were not reduced to writing and were made before any warning was given him. These bills show that appellant was not under arrest at the time of making these statements, and that the detective informed him that the railway company would not prosecute him if he would divulge his knowledge and information concerning the alleged burglary. After appellant had made the admissions in question, Tarbutton and the detective went with him to the county attorney's office for the purpose of having same reduced to writing, and the county attorney then informed appellant that he would not make any agreement to exonerate him from prosecution, since he (the county attorney) already knew more than the appellant had admitted. We think the appellant's contention to the effect that this testimony was inadmissible on account of the promise of immunity from prosecution made by Butler, the detective, and because the statements and admissions were made before appellant was warned and were not reduced to writing, etc., is untenable. Article 727, C. C. P., prohibits the introduction in evidence of confessions made while a defendant is under arrest, in jail, or in some other place of confinement, unless such confession was voluntarily made after due warning, reduced to writing, and signed by the defendant. The facts in this case show that appellant, when the admissions were made and the stolen goods shown to the officers, was not under arrest or in confinement. Furthermore, article 727, C. C. P., does not require that the formalities noted above be observed where a defendant makes statements of fact or circumstances that are found to be true and which conduce to establish his guilt, such as the finding of secreted or stolen property. Under such circumstances, the statements and confessions are admissible, regardless of imprisonment, warning, etc. This court has repeatedly held that statements, admissions, and confessions made by a defendant from which fruits of the crime are discovered are admissible, regardless of whether they were reduced to writing, or whether warning was given, or whether they were obtained by unfair or deceitful means. Brown v. State, 26 Tex. App. 313, 9 S. W. 613; Jones v. State, 50 Tex. Cr. R. 329, 96 S. W. 930; Campbell v. State, 103 Tex. Cr. R. 488, 280 S. W. 1068. For collation of authorities, see article 727, note 12, Vernon's C. C. P., and Branch's Ann. P. C. p. 38.

Bills 6, 8, and 9 complain of the refusal of the court to give appellant's special charges 4, 6, and 7 on the issue of whether or not the admissions and statements discussed above were lawfully obtained. These bills raise the same questions involved in bills 1, 2, and 3, and, consequently, require no additional discussion.

Bills 4, 5, 7, and 14 complain of the refusal of the court to give appellant's special charges 2, 3, 5, and 9, to the effect that, unless the jury believed beyond a reasonable doubt that Harris and the appellant, acting together, or separately, were connected with the actual breaking of the seal on the car door in question, appellant should be acquitted. We are of the opinion that the court committed no error in refusing to give these charges, in view of the fact that the court, at the instance of the appellant, gave, in connection with the general charge, appellant's special charge No. 1, which covered the special charges refused, and, in effect, instructed the jury that, unless they should find beyond a reasonable doubt that the appellant, either alone, or acting with Horace Harris as principal, did break and enter said car, as defined in the main charge, they would acquit him, and that, if the jury found from the evidence beyond a reasonable doubt that the appellant received some of the property stolen from said car, they would acquit him, unless they found beyond a reasonable doubt that he, alone, or acting with Harris, did break and...