Smith v. State

• Decision Date: 06 June 1908
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

111 S.W. 939

SMITH v. STATE.

Court of Criminal Appeals of Texas.

June 6, 1908.

Appeal from District Court, Williamson County; Victor L. Brooks, Judge.

Gorard Smith was convicted of burglary, and he appeals. Affirmed.

D. S. Chessher, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Williamson county, charged with burglary. On trial he was convicted, and his punishment assessed at confinement in the penitentiary for a period of two years.

1. The evidence shows that Otto Miller lived with his wife and family about two miles west of Corn Hill, in Williamson county, and that on Sunday morning, about the 3d day of March, 1907, with his wife and children he left home and went to church, spending the afternoon with friends, and returning home after dark. He testifies that before leaving home he closed and fastened all the doors and windows to the house; that his wife owned a small gold watch, which she usually carried with her whenever she went away from home; that on this Sunday morning she hung the watch on a nail in their bedroom, but forgot to take it with her, and its absence was discovered after they had gone some little distance; that immediately after they returned home that night he went and looked upon the wall at the place his wife usually hung the watch, and found it gone; that he did not see the watch any more until the constable showed it to him, two or three weeks after that Sunday, when he fully identified it. It was shown by the testimony of at least two witnesses that on the day in question defendant was seen near the house of Miller, and going away from it at a place where there was no road or pathway. It was shown by the testimony of Mrs. Otto Zander that, about the time she heard of the loss of the watch in question, appellant handed her a watch at her home and asked her to set it for him; that she took the watch and set it, and that, while not able to positively identify the watch, she said that the watch appellant handed her was a small watch, and looked in general appearance like the one shown her. This watch, when found and recovered, was in the possession of Jim Steiner, a negro living in the community. It appears, further, that before the watch was found in the possession of Steiner Mr. Miller and Mr. Stovall, the constable, went to the place of Otto Zander, and with him they went to the field and saw appellant; that when they arrived there they asked appellant where the watch was he had a short time before, and appellant replied that he had given it to Jim Steiner at Bartlett. Mr. Stovall asked appellant where he got the watch, and he replied that he got it from a girl in Corn Hill. Appellant at first denied having the watch, but afterwards stated that he did have a watch, but gave it to Jim Steiner, and then the constable arrested him and took him away. This is a sufficient statement of the case to make the application of what we shall say apparent.

2. It is recited that on the trial, while the witnesses Zander and Miller were upon the stand and testifying as witnesses in the case, the district attorney asked each one of said witnesses to state what, if anything, appellant had said in their presence about where the watch that appellant had a few days before and had shown to Otto Zander was. This question and the answer thereto appellant objected to, because it had been shown by the testimony of each of said witnesses that at the time of making said statements the defendant was under arrest and in the custody of W. A. Stovall, the constable, and because it had not been shown that the watch which the defendant had a few days before was the watch belonging to Otto Miller's wife and which had been taken from the house of Miller, and because at that time such testimony was immaterial to any issue in the case; that thereupon the court overruled all the objections of appellant, and permitted said witnesses to answer the question; and that they each, in answer thereto, testified as follows: "The defendant stated to us, including W. A. Stovall, that he gave the watch which he had a few days before to Jim Steiner at Bartlett." The appellant further objected to said testimony because it had not been shown that any watch which the appellant had given to said Jim Steiner was the watch of Otto Miller's wife, and because it had not been shown by any other evidence that Jim Steiner had received a watch from the defendant. This bill of exceptions was allowed, with the following qualification: "The questions stated in the bill were in fact propounded as stated. The objections as stated were made and overruled. The witnesses answered as stated; but the grounds of the objection as stated in the bill were not, in the opinion of the court, true, and for this reason the objections were overruled." As we understand, this was in effect a finding by the court that at the time of the statements appellant was not under arrest, and that the objections in respect to the identity of the watch did not directly and correctly state the facts.

In connection with this matter, the court gave the following charge: "The confessions of a defendant made while he is under arrest cannot lawfully be used...