Otts v. State
| Decision Date | 30 March 1938 |
| Docket Number | No. 19563.,19563. |
| Parties | OTTS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Stephens County; B. H. Atchison, Judge.
Bill Otts was convicted of the theft of one head of cattle, and he appeals.
Reversed and remanded.
Floyd Jones, of Breckenridge, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense charged is the theft of one head of cattle, and punishment fixed at confinement in the penitentiary for two years.
This is a case of circumstantial evidence, and the court so charged the jury.
Mr. Donnell lost a certain animal, and its hide and head were found hidden under a bridge in Stephens county. The connection of appellant with the theft of said animal was mainly predicated on the fact that the appellant and his brother, Amos Otts, stored with Mr. McElroy at his ice house, in Amos Otts' name, a hind quarter of a beef. There were some pieces of flesh cut out of this quarter and left on the hide, and, when the hide was fitted to the meat, there appeared pieces of meat that fit the depressions on the hind quarter.
These circumstances were the only proof that served to connect the appellant with this theft, save and except his confession, if such confession does thus connect him. The confession is, in substance, that appellant and his brother were out on a certain road on the night before this meat was stored by them, and they purchased such quarter of beef from a man whose name was unknown to them, and paid him therefor the sum of $4 and took such beef to the ice house and had it stored there. This statement was introduced by the State, and, of course, if the same were true, then the appellant could not have been guilty of stealing the animal from which this hind quarter of beef was taken. The identification of this quarter of beef was very material, and, if such came from the stolen animal, and its possession in appellant remained unexplained, it would have been a strong circumstance going to show that he was the original taker of the animal. But the State comes in and introduces the signed statement of appellant showing that he had in good faith purchased this meat from another, thus exculpating himself. Under these circumstances appellant requested the court to charge the jury as follows: "You are further instructed that when the admissions or the confessions of a party are introduced in evidence by the State, then the whole of the admissions or confessions are to be taken together and the State is bound by them unless they are shown to be untrue by the evidence; such admissions or confessions are to be taken into consideration by the jury as evidence in connection with other facts and circumstances of the case."
If the State introduces a statement of the appellant which contains exculpatory matters, it has the right to and should prove the falsity of such exculpatory statements. In the case of Baggett v. State, 65 Tex.Cr.R. 425, 144 S.W. 1136, 1137, Judge Davidson said:
In the Jones Case, 29 Tex.App. 20, 13 S.W. 990, 25 Am.St.Rep. 715, this court said: "We are of the opinion however, that in all cases where admissions and confessions of a defendant are admitted in evidence against him, and such admissions or confessions contain exculpatory or mitigating statements, it would be proper and just to the defendant to instruct the jury as was requested in this case," that is, that the State is bound by the whole of the statement unless the exculpatory portion thereof is shown to be untrue by the evidence. The above case cites Pharr v. State, 7 Tex.App. 472, 478 as the leading case. To the same effect is the opinion by Judge Morrow in the Forrester Case, Forrester v. State, 93 Tex.Cr.R. 415, 248 S.W. 40, 26 A.L.R. 537. It is also noted that appellant did not take the stand in his own behalf. It is not true that in every instance of the introduction of a statement of the defendant containing exculpatory statements that the State is bound thereby, but, where such a statement is used to fasten guilt upon one accused of crime, the exculpatory statement must be disbelieved by the jury, and some such instruction should be given them in their deliberations. That such was asked in this cause, the above request shows, and the same complaint is found in the objections to the court's charge. Such request was refused by the trial judge. For the failure to give such charge, or one of like import, this judgment is reversed and the cause remanded.
On Motion for Rehearing.
It is urged in a motion for rehearing by the State that we were in error in holding that under the proven facts the trial court should have instructed regarding the effect of an exculpatory statement contained in appellant's confession which was introduced by the State.
Many authorities are submitted in the motion as sustaining the State's position. We have examined all of said authorities and many others on the point at issue. It would extend this opinion to unpardonable lengths to undertake a review of the cases dealing with the subject. In Pharr v. State, 7 Tex.App. 472, the general rule was announced that when the State introduced a confession or admission of an accused containing exculpatory declarations it was ordinarily incumbent upon the court to instruct the jury that the exculpatory statements were regarded as true unless disproved. Immediately thereafter exceptions to the rule began to be engrafted as will appear from Branch's Ann.Tex.P.C., Sec. 73, page 44, and 24 Tex.Jur., Sec. 109, page 598, until at the present time it is difficult for trial judges to know when a charge regarding exculpatory statements is demanded. The court has always found it difficult to lay down an arbitrary rule as to when such instruction should or should not be given because of varying facts, but in the Jones Case, Jones v. State, 29 Tex. App. 20, 13 S.W. 990, 29 Am.St.Rep. 715, Judge Wilson seemed to sense the situation and as a warning suggested in the language quoted in our original opinion that while it was not necessary in all cases to give such an instruction, yet it was then the opinion of the court that where admissions and confessions of an accused were admitted against him, and contained exculpatory statements, "it would be proper and just to the defendant to instruct the jury" relative thereto.
The present writer attributes some of the confusion in our opinions on the subject to a failure sometimes to keep in mind that it was not so much a question of a defensive charge arising from the exculpatory statement, as it was the effect of the exculpatory declaration when introduced by the State under circumstances where the State is supposed to vouch for the truth of its evidence. Especially is this true when it is remembered that the State is not required to offer the entire confession, but may offer such...
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