McDanial v. State
| Decision Date | 15 June 1904 |
| Citation | 81 S.W. 301 |
| Parties | McDANIAL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Parker County; J. W. Patterson, Judge.
John McDanial was convicted of burglary, and he appeals. Reversed.
Preston Martin, J. M. Richards, and Bernard Marten, for appellant. Howard Martin, Asst. Atty. Gen., for the State.
Appellant was charged with burglary. The alleged burglary was committed in Parker county, about 18 miles distant from appellant's residence, in Wise county, about the 10th of November, 1901. The indictment was returned on April 14, 1904. His sister was the main witness. She testified that about 11 or 12 o'clock appellant came home, and brought with him a lot of jewelry and some money, and that he secreted it, and she assisted him; that they secreted it first one place and then another; that she never mentioned the fact until two years or such a matter, when she had become angry and unfriendly with her brother; that she and her husband, at the time she instituted the prosecution, were very unfriendly towards appellant. When appellant was arrested at his residence he was warned. This was about six or seven miles from Decatur, the county seat of Wise county. He was carried thence to the county jail, and the next day his wife called on him in the jail. She was accompanied in the jail by the daughter of the sheriff, a girl some 14 years of age. The wife remarked to her husband, "The boys have gone out there" (meaning they had gone out to search appellant's house). He asked his wife if she left the things where he put them. She said "Yes." He then said, "You need' not be uneasy." Witness said she did not know what things they were talking about. Several reasons were urged as objections to this testimony; among others, that it was a private conversation between appellant and his wife in jail; defendant was under arrest, he had not been warned, and the conversations and statements were not made with the consciousness of the warning of the preceding day at his home in the country. This testimony was clearly inadmissible, unless at the time the statements were made defendant was conscious of and had in mind the previous warning. Penny v. State (Tex. Cr. App.) 42 S. W. 297. Before statements of this character, under the circumstances detailed, can be used, it must appear that they were made with the impending sense or consciousness of the previous warning. Here the warning was given the previous day; the statements were not made to the officer who gave the warning, or to any of the officers, but in a private conversation with his wife. It would hardly be presumed or used against defendant that the warning given by an officer the day before would be considered by the accused as a caution against...
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