Pierce v. State

• Decision Date: 08 June 1921
• Docket Number: (No. 6314.)
• Citation: 234 S.W. 537
• Parties: PIERCE v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 537

PIERCE v. STATE.

(No. 6314.)

Court of Criminal Appeals of Texas.

June 8, 1921.

Rehearing Denied November 23, 1921.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

X. A. Pierce was convicted of theft, and he appeals. Affirmed.

Perkins & Perkins, of Rusk, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was convicted of theft; punishment assessed at confinement in the penitentiary for a period of four years.

The record is before us without a statement of facts. Certain exceptions to the charge and the admission of evidence appear. It is a general rule that, in the absence of a statement of facts, where no fundamental error appears, every presumption will be in favor of the regularity of the procedure, the accuracy of the court's charge, and the sufficiency of the evidence. Davis v. State, 2 Tex. App. 162, and other cases listed in Branch's Ann. Penal Code, § 602. Exceptions to this rule at times arise, but nothing in the record brings the instant case within any of them. Mitchell v. State, 2 Tex. App. 404, referred to by Mr. Branch in the section mentioned; Williams v. State, 77 S. W. 447; Walker v. State, 98 S. W. 265; Denton v. State, 42 Tex. Cr. R. 427, 60 S. W. 670; Hare v. State, 56 Tex. Cr. R. 6, 118 S. W. 544, 133 Am. St. Rep. 950; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565.

In the case before us, we are without the benefit of a brief for appellant, and there is but one bill of exceptions which challenges our attention. That relates to the introduction of the confession of the appellant. Two questions arise, namely: Was there a warning given? and, Was the confession voluntary?

The statement is sworn to and given in an examining court in the presence of the justice of the peace and the county attorney. It is not made clear from the bill whether it was in the nature of testimony on preliminary trial or a confession in the technical sense. If the former, the warning was unnecessary to render it admissible. Kirkpatrick v. State, 57 Tex. Cr. R. 17, 121 S. W. 511; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37; Rios v. State, 183 S. W. 152.

We think the bill of exceptions does not show error. If this were doubtful, however, we would not feel authorized to reverse the judgment because of the admission of the statement, for the reason that it is disclosed by another bill of exceptions that there was introduced in evidence a verbal confession of the appellant, which we think was admissible under the phase of article 810, which permits the use of verbal confessions where "they are accompanied statements made by the accused from which the confession is found to be true or which conduce to establish his guilt."

From the qualification of the bill complaining of the receipt of the verbal confession, it is made to appear that by means thereof the stolen property was discovered. This being true, the verbal confession was admissible. Smith v. State, 53 Tex. Cr. R. 643, 111 S. W. 939; Vernon's Texas Crim. Statutes, vol. 2, p. 756, note 12, and cases cited. The verbal confession having been properly admitted, and it going to establish the same fact to the proof of which the written statement was directed, any supposed error in the admission of the latter would be rendered harmless. Fulcher v. State, 28 Tex. App. 470, 13 S. W. 750; Brown v. State, 20 S. W. 924; Laurence v. State, 31 Tex. Cr. R. 601, 21 S. W. 766; Am. Digest (Century Edition) vol. 15, p. 933.

Especially is this true in the instant case, where effect must be given to the presumption that there was before the jury legal evidence adequate to sustain the conviction.

The judgment is affirmed.

On Motion for Rehearing.

The facts are now before us. Independent of appellant's confession they disclose that the property in question, certain automobile casings and batteries, were thrown from a freight car at nighttime and taken possession of by the appellant on the following morning. Circumstances showing the conduct of the appellant with reference to taking possession of the property point to guilty knowledge and intent.

The sheriff testified that upon information received, he went to Jacksonville in search of the appellant. He found him after he had been arrested by another officer. Appellant told him where to find the stolen property, and, upon information thus obtained, the sheriff found it, consisting of eight automobile casings, four batteries, two cushions, and a sack of tools, in the house of the appellant. Before the appellant informed him he had no knowledge of its whereabouts.

Appellant was not warned that his declaration might be used against him. Before he gave the information, the sheriff told him that it would be better for him to tell where the property was. The admissibility of this testimony is challenged, but we regard the complaint as unsound. The requisites of a confession prescribed by article 810 of the Code of Criminal Procedure are not applicable where, "in connection with said confession, [the accused] makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed." The appellant's declaration, though while under arrest, having led to the finding of the stolen property, was admissible (Parker v. State, 40 Tex. Cr. R. 122, 49 S. W. 80; Branch's Crim. Law, § 222), and, under these circumstances, the confession was not rendered inadmissible by the sheriff's statement that it would be better to discose the facts (Jones v. State, 50 Tex. Cr. R. 330, 96 S. W. 930; Collins v. State, 20 Tex. App. 419; Brown v. State, 26 Tex. App. 313, 9 S. W. 613).

As a predicate for the introduction of a written confession, the county attorney testified, as shown by the bill of exceptions, that he conversed with the appellant at the jail, and there told him he thought it would be best for him to make the statement; that later the appellant was brought to the office of the justice of the peace; that the county attorney then made the preliminary statement required by the statute, giving warning, etc. The appellant asked some questions, to which the county attorney replied that he had nothing further to say; that appellant must be governed by his own judgment; that the justice of the peace said he thought it would be best to go ahead and make the statement. Upon this predicate, the appellant advances the proposition that the confession should have been excluded because it was not voluntary. The principle which controls is stated by Mr. Branch, in his Texas Annotated Penal Code, page 41, thus:

"To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority, and it must also be of such character as would be likely to influence the defendant to speak untruthfully."

In the application of this principle, there is an apparent absence of harmony in the reported cases. At least, there can be gathered from these decisions no exact formula as to what will and what will not exclude the statement. See Searcy v. State, 28 Tex. App. 513, 13 S. W. 782, 19 Am. St. Rep. 851; Rose's Notes on Texas Rep. (N. S.) p. 785; See, also, 18 L. R. A. (N....