source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    ERVIN v. STATE.
    (No. 4482.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge. J. C. Ervin was convicted of aggravated assault and battery, and appeals.
    Affirmed.
    J. E. Vickers, of Lubbock, for appellant. E. B. Hendricks, Asst. Átty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of an aggravated assault and battery under an indictment charging assault to murder, and Ms punishment assessed at a fine of $600 and 12 months’' imprisonment in the county jail. The motion for new trial alleges that the evidence is not sufficient to support the verdict of the jury and the judgment of the court thereon. It also alleges error in refusing to give certain instructions, as well as error in the charge given by the court. The charge as given is predicated upon a state of facts which could be proved under the allegations in the indictment. The evidence not being before us, we are unable to review the questions, and the judgment will be affirmed.


text:
    HARROLD v. STATE.
    (No. 4555.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Appeal from District Court, Harrison County; P. O. Beard, Judge. Joe Harrold was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary. The record is before us, without a statement of facts or bill of exceptions. In this record there is nothing to be reviewed or intelligently discussed. The judgment will be affirmed.


text:
    HENDERSON v. STATE.
    (No. 4558.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Appeal from District Court, Harrison County; P. O. Beard, Judge. Hale Henderson was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant’s conviction was for murder; punishment being assessed at confinement 'for ten years in the penitentiary. Motion for new trial contains quite a number of grounds, complaining of alleged errors of the court with reference to charges and refusal to give requested instructions, and also a refusal of the court to grant a continuance; also complaining that the evidence is not sufficient to support the conviction. None of these matters can be reviewed, in the absence of a statement of facts and bill of exceptions. The exceptions to the charge as given by the court cannot be revised, or intelligently discussed even, without a statement of facts. The court’s charge may have been sufficient under the evidence, viewed in the light of the allegations and indictment. Under the condition of the record, this judgment will be affirmed.


author: MORROW, J.

text:
    JACKSON v. STATE.
    (No. 4532.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Appeal from Bexar County Court; Nelson Lytle, Judge. E. J. Jackson was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Prosecution is upon a sufficient complaint and information charging unlawfully carrying a pistol. There are no bills of exception or statement of facts in the record, and no error otherwise disclosed. The judgment of the lower court is therefore affirmed.


text:
    SHEFFIELD v. STATE.
    (No. 4554.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Appeal from District Court, Hays County; Frank S. Roberts, Judge. Tobe Sheffield was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The judgment in this case condemns appellant to two years’ confinement in the state penitentiary for theft. The indictment is sufficient, charging a felony. The charge is not complained of by any bill of exceptions sufficiently presenting the issues. The judgment and sentence on verdict of the jury are regular. The rulings of the trial court are not complained of in any assignment of error, and the record is without statement of facts. The judgment of the lower court is affirmed.


text:
    SIMPSON v. STATE.
    (No. 4533.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Appeal from District Court, Smith County; J. R. Warren, Judge. Jim Simpson was convicted of selling intoxicating liquors in prohibited territory and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant by proper indictment was charged with pursuing the occupation of selling intoxicating liquors in prohibited territory. This appeal is from conviction and sentence of two years’ confinement in the penitentiary. The law appears to have been submitted to the jury in a written charge. There is no statement of facts showing what evidence was before the court, nor bill of exceptions complaining of any ruling of the court. We have found nothing in. the record which authorizes reversal of the case, and the judgment of the lower court is therefore affirmed.


author: PRENDERGAST, J.

text:
    SPEAKER v. STATE.
    (No. 4557.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge. Percy Speaker was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of burglary, with the lowest penalty assessed, and without a bill of exceptions or statement of facts. In the absence of these, nothing is presented for review. The judgment is affirmed.


text:
    WEINBERG v. STATE.
    (No. 4510.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.
    Rehearing Denied. June 29, 1917.)
    Appeal from Johnson County Court; B. Jay Jackson, Judge. M. Frank Weinberg was convicted of violating the local option law, and appeals.
    Affirmed.
    W. E. Myres and J. E. Warren, both of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed ‘at a fine of $25 and 20 days imprisonment in the county jail. The record is before us without a statement of facts or bill of exceptions. The matters mentioned in the motion for new trial cannot be considered with the record in that condition. So far as the record shows, the trial was regular, and no sufficient reason is shown why the judgment should be reversed. It is therefore ordered to be affirmed.


author: MORROW, J. PRENDERGAST, J.

text:
    OLIVER v. STATE.
    (No. 4524.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.
    Dissenting Opinion July 19, 1917.)
    1. Geand Jury <&wkey;41 — Confession Made to —Admissibility in Evidence.
    A confession is not inadmissible merely be-' cause made before the grand jury.
    2. Criminal Law &wkey;530 — Confessions— Reduction to Writing.
    Statement of defendant before the grand jury, where after arrest he was brought by the jailer, of his connection with the crime, is within Code Or. Proc. 1911, art. 810, declaring' inadmissible a confession made by defendant while in the custody of an officer unless made in an examining court or in writing signed by him.
    Prendergast, J., dissenting.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Joe Oliver was convicted, and appeals.
    Reversed and remanded.
    Sid Crumpton, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for theft of cattle.

The facts show that Robert Finch’s cow was driven from his pasture. I-Ie identified the hide of the animal in the possession of the express company, it having been shipped by R. N. Epperson. Epperson did not in person deliver the hide to the express company; hut it, with other hides, was delivered by a negro boy not identified. Epperson kept a restaurant and butcher shop, and was in the habit of shipping hides. There was evidence that appellant had at times worked for Ep-person, and, aside from the appellant’s confession, there was evidence that appellant was in Epperson’s employ at the time of the theft. Appellant was arrested and placed in jail, and the evidence brought forward in the bill of exceptions is conflicting as to whether his detention was under charge of the offense or as an attached witness; but there is no conflict as to the fact that he was suspected of the crime, that he had knowledge of this, that he was brought by the jailer into the grand jury room and there made a statement with reference to his connection with the crime, and that he was returned to the jail in custody of the jailer after making the statement. The county attorney said that before the statement was made he had sufficient evidence against appellant in his judgment, to form a basis of indictment against him for this offense. When brought before the grand jury, the state’s attorney advised appellant that he was not required to make a statement, and that one made might be used against him and could not be used in his favor; and after this warning appellant stated, in substance, that he and another employe of Epperson got the cow from Finch’s pasture and brought her to Epperson’s' place butchered her at night, and the next morning each received $8 from Epperson for their services in the matter. This confession was not reduced to writing, but over appellant’s objection verbal proof of it was made.

This court has frequently held that a confession made before the grand jury while the accused was under arrest could be used against him, provided the proof showed that the statutory requisites to the admissibility of the confession were met. Wisdom v. State, 42 Tex. Cr. R. 581, 61 S. W. 926. The fact that the confession is made in the presence of the grand jury does not render it admissible, nor prevent it. The inquiry is: Was the confession made under the conditions and with the formalities required by statute to make admissible a confession when the accused is under arrest? Branch’s Digest, § 227, and cases cited: Thomas v. State, 35 Tex. Cr. R. 178, 32 S. W. 771; Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583. Formerly, the statutory requisites only required that the confession be voluntarily made after due warning. As amended by the Acts of 1907, p. 219, the statute requires that the things above, and in addition thereto that the confession be in writing and signed by the accused. The law is as follows:

“The confession of a defendant may be used in evidence against him if it appears that the same was freely made without compulsion or persuasion, under the rules hereinafter prescribed.” O. C. P. art. 809.
“The confession shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made;” etc. C. C. P. art. 810.

It is only those confessions which are made in accordance with law which are admissible. Brown v. State, 55 Tex. Cr. R. 572, 118 S. W. 139; Vernon’s C. C. P., p. 751, note 3. That the circumstances under which the statement was made by appellant were such as to render it inadmissible unless the formalities prescribed by the foregoing statute were complied with is, we think, established by decisions of this court in the case of Fry v. State, 58 Tex. Cr. R. 170, 124 S. W. 920; Gilder v. State, 35 Tex. Cr. R. 363, 33 Pac. 867.; Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575; Simmons v. State, 184 S. W. 226; Wood v. State, 22 Tex. App. 441, 3 S. W. 336. In Fry’s Case, Fry was suspected of theft, and the matter was under investigation by the grand jury, and while not actually under arrest or in jail he was practically in custody, in that he would not have been permitted to have escaped. The court, among other reasons for holding testimony inadmissible, uses the following language:

“Where a statement, admission, or confession of an accused party, when under arrest or in confinement, is sought to be used, under the present statute, the same must be reduced to writing under the formalities and solemnities set out in the terms of that statute. The statements of appellant were not reduced to writing as required by the recent statute, and therefore inadmissible.” 58 Tex. Cr. R. 170, 124 S. W. 920.

In Gilder’s Case, 35 Tex. Cr. R. 360, 33 S. W. 867, testimony of a witness given with knowledge that he was suspected of the crime, and under circumstances showing arrest and custody similar to those in the present case, it was held b.y this court in the opinion of presiding Judge Hurt that the statement given in the absence of the formalities required by the statute with reference to confessions was not admissible against him. To the same effect is the holding in the Wood Case, 22 Tex. App. 437, 3 S. W. 336. In Calloway’s Case, 55 Tex. Cr. R. 263, 116 S. W. 575, the principle applied in the Wood Case, supra, and the Gilder Case, supra, was adhered to by this court to a statement of facts in which the county attorney had caused the party through the use of a subpoena to come to his office and give testimony where prosecution for the offense under investigation followed shortly thereafter. In the Simmons Case, 184 S. W. 226, and the case of Wood v. State, 22 Tex. App. 431, 3 S. W. 336, supra, and other cases following which are mentioned above, were expressly reaffirmed in a case where the appellant’s statement before the grand jury, made without previous warning, was held inadmissible.

The decisions of this court are harmonious to the effect that, to render a confession admissible where the party making it is in the custody of an officer, it must be given under the formalities named in the statute, and one of these in the present statute is that it be reduced to- writing and signed by the party making it.

Appellant’s confession was made while he was in custody of an officer, and was voluntary and after warning. It was not in an examining court; it was not reduced to writing, and it was not signed by the appellant, and its introduction against him was prohibited by article 810, C. C. E.; Branch’s Penal Code, p. 42, and cases cited: Layton v. State, 52 Tex. Cr. R. 513, 107 S. W. 819; Branch’s Ann. P. O. p. 33, § 60, and cases cited.

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). Appellant and' Mack Parnell were jointly indicted for the theft of a cow belonging to Robert Pinch. In the same indictment Bob Epper-son was charged as an accomplice of said Oliver and Parnell in the theft of said cow, and Epperson was also charged therein with aiding said parties in evading arrest for the theft of said cow. And also he was charged with receiving from said parties and concealing said cow knowing that she was stolen. A severance was had, and appellant, Oliver, was first to be placed on trial, Epperson next, and Parnell last.

The proof, without any conflict or contradiction, showed that on the night of April 29, 1915, said Pinch’s cow was stolen, out of his little pasture near his residence about one mile from the town of De Kalb. The tracks of two persons and those of the cow showed that she was roped in the pasture’ and taken out of it and in a circuitous route-by said two parties, driven with the rope on her to De Kalb, and was butchered that night, and next day said Epperson shipped the hide of this cow by express to a hide company in Texarkana. Pinch with others went to this hide house in, Texarkana, found the hide of his cow, thoroughly identified it, and it was shipped back by express to De Kalb. What became of it before this trial is not disclosed. There can be no question from the testimony but that said Pinch’s cow was stolen on said occasion, and that' said three persons, appellant, Parnell, and Epperson, were the guilty parties.

In October following, the grand jury investigated this theft. Appellant was a witness and testified before the grand jury about it. The state on this trial offered to prove what he testified at the time, and he claimed in his objections that his testimony was a confession and, not being in writing, was inadmissible. When this question came up, the judge retired the jury and out of their hearing fully investigated this question. Not only the grand juror who was introduced for the purpose of proving ,what appellant swore before the grand jury testified fully on the point, but also the district attorney, appellant’s attorney, and some of the officers also testified. The bill presenting this question is very lengthy, some 13 typewritten pages. It reproduces in question and answer form the testimony of these witnesses heard by the judge and all that then occurred. It is unnecessary to reproduce the whole bill. I will state the substance of what it shows.

When the grand jury began this investigation, they learned that appellant and said Parnell were important witnesses. Evidently the grand jury must have thought that Ep-person was the really guilty party, and their investigation was directed toward him. Late one evening the grand jury issued an attachment for appellant and Parnell as witnesses to appear before them next day. They had some difficulty in procuring an officer to execute this attachment. However, they succeeded that night, and some officers or persons for them went to De Kalb and attached these two witnesses at night. They returned with them about 4 o’clock the next morning and took them to the jail to turn over to the officer there to be held to appear before the grand jury the next morning. The grand jury reconvened and continued this investigation the next morning about 8:30 o’clock. These two witnesses were taken over to the grand jury. Parnell first went into the grand jury and testified; appellant knew it. He waited in the clerk’s office until Parnell got through. He then specially desired to also testify before the grand jury, and so informed the grand jury. Thereupon he was introduced as a witness and testified before the grand jury. His testimony was voluntary and was after a full and complete warning that he might be implicated and that his testimony could be used against and not for him. With all this knowledge he persisted in his desire to testify, and the grand jury thereupon let him testify. His testimony was not a confession; not treated or thought of as such. It was just like the testimony of any other witness before the grand jury. He was not under arrest at the time charged with this or any other offense. He was merely an attached witness. After hearing all this testimony, in the absence of the jury the court held properly that he was not under arrest; that his testimony before the grand jury was admissible against him, and thereupon had the jury returned, and permitted the grand juror Crump to reproduce his testimony before the grand jury. His testimony before the grand jury, as sworn to by this grand juror, was to the effect that late the ■evening before the cow was taken that night Epperson told him and Parnell to go and get a cow at Pinch’s that night, which they did. He briefly told where and how they took her from Pinch’s pasture to Epperson’s butcher pen and butchered her, and that Epperson had the meat taken to his butcher shop, early next morning, and that Epperson paid him and Parnell each $8 for going and getting the cow.

The evidence further developed that appellant was merely a hired hand for Epper-son and worked for him as such. His testimony before the grand jury was an attempt by him to exonerate himself as to theft; that he was merely acting as a hired hand, and was working 'for Epperson and under him, and simply executed his orders, and that was all.

His testimony before the grand jury, as stated, was not a confession; not so intended by him or by the prosecuting officer or the grand jury, but was merely his testimony in an attempt to exonerate himself from any criminal liability. Hence our confession statute had no application as correctly held by the trial judge. His testimony before the grand jury could be proven against him, legally just the same as if he had testified on a previous trial or an examining trial when he should fail to again testify when on a second or any other trial. He did not testify on this trial. He offered no testimony whatever.

None of the cases cited by the majority. opinion are in point. No one questions the law that, when a confession as such is attempted to be proven against an accused, it must be in writing after due warning and conform to our statute on the subject. The decisions cited merely show this and, in addition, that when an accused is before the grand jury, or a case against him is under investigation, and he is not informed thereof and not warned, then his testimony under such circumstances would not be admissible against him. But if he is warned, knows the facts, and still wants to testify voluntarily, and does so, then his testimony is admissible against him. That was this ease, and his testimony was not a confession, not thought of as such when he was testifying before the grand jury, and I think was clearly admissible. *

This judgment should have been affirmed, not reversed. I respectfully dissent.
      <S^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GEARHEART v. STATE.
    (No. 4530.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    1. Intoxicating Liquors <&wkey;40(3) — Statutes — Local Option Law — Construction.
    Pen. Code, art. 589, prohibiting the pursuit of the business of selling intoxicating liquors in territory where such sale is prohibited by law, is applicable to counties in which local option was adopted previous to its passage; it not being applicable alone to territory in which an election has been held subsequent to its passage.
    2. Statutes &wkey;>231 — Revision — Adoption Without Change — Presumption.
    Where the Legislature revises the statute of a state without changing a particular statute which has been judicially construed, it is presumed that the Legislature intended that the same construction should continue to be applied to the statute.
    3. Courts <&wkey;89 —Former Decisions Controlling — Decisions of the Same, CouiVt.
    A rule deliberately adopted, declared, and uniformly followed by a court should not be abandoned, except upon the most urgent reasons.
    4. Intoxicating Liquors &wkey;>236(8) — Engaging in Business op Selling in Local Option Territory — Evidence—Sueeiciency.
    Hnder Pen. Code, art. 589, the testimony of one witness as to isolated sales was insufficient to establish that accused was engaged in the “business” of selling liquors in prohibited territory.
    Appeal from District Court, Collin County; O. T. Freeman, Judge.
    Dick Gearheart was convicted of pursuing the business of selling intoxicating liquors in territory where such sale is prohibited, and he appeals.
    Reversed and remanded.
    John Doyle, Martin Kindle, and T. C. Andrews, all of McKinney, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This was a prosecution under article 589, P. C., prohibiting the pursuit of the business or occupation of selling intoxicating liquors in territory where such sale is prohibited by law.

At an election Reid in July, 1907, tlie sale of intoxicating liquors in Collin county was prohibited. No subsequent election has been held, and appellant contends that article 589, supra, which was passed in 1909, would not be operative in Collin county, insisting that this act creating the offense of pursuing the occupation of selling intoxicating liquors in prohibited territory should be the foundation of a prosecution only in territory in which the election was held subsequent to the passage of the act. -

The precise question was decided adversely to appellant’s contention by this court in case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040. In a very carefully prepared brief and interesting oral argument appellant insists that the conclusion reached in the Pitch Case was erroneous, and that, notwithstanding that decision, the question should be reviewed, and urges in support of this view the decision of this court in the case of Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, and the decisions of this court previously decided and cited therein, among them being Dawson v. State, 25 Tex. App. 670, 8 S. W. 820; Ex parte W. R. Elliott, 44 Tex. Cr. R. 575, 72 S. W. 837; Robinson v. State, 26 Tex. App. 82, 9 S. W. 61; Lawhon v. State, 26 Tex. App. 101, 9 S. W. 355; McElroy v. State, 39 Tex. Cr. R. 529, 47 S. W. 359. The point decided in the Lewis Case, supra, was that, in a county where the sale of intoxicating liquors was prohibited by a local option election held in 1902 and the penalty for making sales was then prescribed by law, a subsequent act of the Legislature passed in 1909, making the penalty more onerous for the sale of intoxicating liquors, would not be enforced, but the penalty for the sale in such county would be that which was in force at the time the election was held. Appellant’s argument is that the Lewis Case, supra, and the Pitch Case, supra, are inconsistent, and that to harmonize them the Pitch Case should be overruled.

The argument that the cases mentioned are somewhat inconsistent is plausible, but it does not logically follow from this that the Pitch Case is based upon unsound principles. The Lewis Case, supra, was preceded by the case of Dawson v. State, 25 Tex. App. 670, 8 S. W. 820, and other cases mentioned above. In the Dawson Case the Assistant Attorney General, who is now presiding judge of this court, gave, in his brief, very cogent reasons for his contention that the court should reach the conclusion contrary to that which it did reach in the decision of that case., His contention was, in effect, that section 20, art. 16, of the Constitution, which provides that the Legislature shall enact a law whereby,the qualified voters may, by a majority vote, determine from time to time whether the sale of intoxicating liquors shall be prohibited within prescribed limits, did not require the submission to the people of the terms of the law or the penalty for its violation, but the question only as to whether the sale should be prohibited, leaving the 'Legislature free to prescribe penalties at its will for violations of the law. This brief of Judge Davidson was reproduced by Judge Ramsey in writing the opinion in the Lewis Case, 58 Tex. Cr. R. 355,127 S. W. 808, 21 Ann. Cas. 656. His contention is apparently in harmony with the idea of the Supreme Court of this state expressed in Ex parte Dupree, 101 Tex. 150, 105 S. W. 493. The opposite view, however, having been taken in the decision of the Dawson Case, this court, in deciding the Lewis Case, supra, felt constrained, under the doctrine of stare de-cisis, to make the ruling in the Lewis Case consistent with that of the Dawson Case and cases following it. The Lewis Case was founded upon the additional rule of law stated therein as follows:

“When the Legislature revises the statutes of the state after a particular statute has been judicially construed without changing that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to the statute.”

Giving application to this rule, which is supported by many authorities cited in'Lewis v. State, this court held that the re-enactment of the law of 1887, subsequent to the decision of this court in 'Dawson Case and other cases following it mentioned, was a legislative adoption of the construction of the law given in those decisions, binding, since such re-enactment, upon this court.

. Applying the same doctrine to the case under consideration, we find that the case of Pitch v. State, construing article 5S9, which was passed by the Legislature in 1909, was finally decided May 4, 1910, and subsequently article 589 was brought forward by the Legislature in the revision of the laws adopted in 1911. Prom this it is apparent that the rule of legislative adoption of the judicial construction of statutes, which is the mainstay of the Lewis Case, applies in full force to this one. The Lewis and Pitch Cases were decided the same day. Judge Ramsey, who wrote the opinion in the Lewis Case, also wrote an opinion in the Pitch Case, upholding legislative authority to pass article 589 and to make it applicable to counties and districts in which the local option prohibition law had been previously adopted. While Presiding Judge Davidson dissented from the majority in the decision of the Bitch Case, that decision, since it was rendered has furnished the rule of construction of the statute in question, and has been followed without dissent in numerous cases. Among them are Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Clark v. State, 61 Tex. Cr. R. 597, 13,6 S. W. 260; Wilson v. State, 69 Tex. Cr. R. 567, 154 S. W. 571.

Where the decisions of the same court upon a given question are conflicting, it often becomes necessary to determine which is supported by the better reason, and to overrule the cases holding to an opposite view, but when a rule has been once deliberately adopted and declared and uniformly followed, it should not be abandoned except upon the most urgent reasons. Kent’s Commentaries, vol. 1, p. 475; Lyle v. State, 193 S. W. 684. The writer is of the opinion that the Fitch Case was correctly decided.

The indictment charges that appellant was unlawfully engaged in the pursuit of the ' occupation or business of selling intoxicating liquors in violation of law, and that in pursuance thereof made sales to J. H. Dawson. In this charge the state relied upon the testimony of J. H. Dawson, who testified that he had bought whisky from appellant five or six times or more in the past year, and did not more definitely fix dates, but said that he bought it at different places in Collin county, naming a livery stable, feed store, barber shop, and wagon yard as places at which he had received it. Several witnesses testified that Dawson’s general rexmtation for truth and veracity was bad. None supported him. In several instances in which Dawson located the places or persons present where he had delivered whisky to appellant there was testimony introduced by appellant tending to contradict as to facts. There was some testimony that Dawson entertained resentment against the appellant because of appellant’s refusal to sign his note. Apipellant testified in his own behalf, and denied all the transactions with Dawson, and denied any connection with the sale of intoxicating liquors. Quite a number of witnesses testified that his general reputation for truth and veracity and as a law-abiding citizen was good. The state called a constable and deputy sheriff, who testified that appellant had a reputation of being a “bootlegger.” On cross-examination they stated there had never been any complaint against him by any one except the witness Dawson; he had never been arrested on any other complaint; never knew of his making any sales. It appeared from their testimony that the only information they had with reference to appellant’s reputation or misdeeds was from the witness Dawson. There was an absence of testimony, except the evidence mentioned with reference to the sale to Dawson, of any circumstances or facts showing that appellant was engaged in the business of selling intoxicating liquors.

The statute under which this prosecution is maintained requires proof that the accused was engaged in the business of selling intoxicating liquors in prohibited territory. It also requires allegation and proof of at least two sales of liquor in pursuance of said business. Article 591, P. C.; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W, 1040. There are other subdivisions of the same chapter of the Code which condemn as an offense isolated sales of intoxicating liquors. In a prosecution for that offense the proof of one or more sales of intoxicating liquors in prohibited territory will support a conviction, but in a prosecution for pursuit of the business a conviction will not be sustained upon such testimony alone. This was held by this court in an opinion by Judge I-Iarper in Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 584, and in an opinion written by Presiding Judge Davidson in Molthrop Case, 66 Tex. Cr. R. 543, 147 S. W. 1160. In Oliver’s Case, 68 Tex. Cr. R. 414, 152 S. W. 1067, the proof requisite to convict for pursuing the occupation as distinguished from the proof necessary to convict for making a sale of intoxicating liquor is elaborated, and it is further illustrated in Robinson’s Case, 66 Tex. Cr. R. 392, 147 S. W. 245. If this prosecution was for the sale of intoxicating liquors we might not be authorized to disturb the verdict, but we think there is lacking proof of the elements of an offense of pursuing the business of the unlawful sale of intoxicating liquors, in that the only evidence relied upon is the testimony of Dawson to isolated sales.

We overrule the appellant’s assignments complaining of the indictment, but because of the insufficiency of the evidence to support the conviction, it is.ordered that the judgment of the lower court be reversed, and the cause remanded.
      @=»For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    FISHER v. STATE.
    (No. 4517.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Indictment and Information &wkey;»7 — Time for Trial — Special Term.
    An indictment cannot be attacked where found at a special term, because a term of court was then in session in another county in the same district.
    2. Intoxicating Liquors <&wkey;236(8) — Business of Selling — Criminal Prosecution— Sufficiency of Evidence.
    A conviction for pursuing the business of selling intoxicating liquors in prohibited territory cannot be bad alone upon the proof of two isolated sales.
    3. Criminal Law <&wkey;S29(7) — Refusal of Request Covered by Charge — Alibi.
    A special charge on the subject of alibi was properly refused, where it was fairly submitted in the main charge.
    4. Criminal Law &wkey;>814(15) — Refusal of Request — Applicability to Evidence — Accomplice’s Testimony.
    It was proper to refuse to instruct on the law of accomplice testimony as applied to a witness, whom the evidence showed was unconnected with the alleged sale of intoxicating liquors, except that he was a purchaser of it.
    5. Criminal Law <&wkey;1122(4) — Appeai—-Bill of Exceptions — Essentials — Refusal of Request.
    It is essential that a bill of exceptions specifically show testimony of witness claimed to be an accomplice, upon which subject a requested instruction was refused, and that it disclose sufficient facts to enable the court to pass upon its probable effect.

      ■6. Criminal Law <&wkey;736(l) — Accomplice — Jury Question — Assumption by Court.
    The court could not assume, as a matter of law, that a witness, who merely exchanged whisky and money between defendant and purchaser, was an accomplice to the sale, where the evidence left this question in doubt.
    7. Criminal Law <&wkey;1186(4) — Harmless Error-Refusal of Request.
    Where an alleged accomplice’s testimony was merely cumulative, and not essential to conviction, a reversal will not be had upon court’s failure to instruct on the subject of accomplice testimony, in view of Vernon’s Ann. Code Cr. Proe. 1916, art. 743, providing that a cause shall not be reversed, unless such error was calculated to injure defendant’s rights.
    8. Criminal Law <&wkey;444 — Admission of Evidence — Express Records.
    In a prosecution for pursuing the business of selling intoxicating liquors in prohibited territory, express records showing shipments of liquor to defendant were admissible, although the particular entry was in the handwriting of another than the witness, with whose handwriting he was familiar.
    9. Criminal Law <&wkey;1169(2) — Harmless Error — Admission of Cumulative Evidence.
    Express records being admissible in prosecution for pursuing business of selling intoxicating liquors, it was not reversible error to permit the witness to state that the books showed the entries in question; such statement being merely cumulative of the facts disclosed by the book.
    On Motion for Rehearing.
    10. Intoxicating Liquors &wkey;>249 — Business of Selling — Criminal Prosecution-Indictment.
    An indictment for pursuing the business of selling intoxicating liquors in prohibited territory must give the name of the alleged purchaser of the liquor touching the two sales essential under the statute.
    11. Intoxicating Liquors <&wkey;239(7%) — Instructions — Applicability to Evidence.
    The court’s refusal to instruct that two sales -of intoxicating liquors to the person mentioned in indictment for pursuing the business of selling intoxicating liquors must be proved is reversible error, where the indictment contained a general allegation of sales to unknown parties, since the jury might conclude that, although only one sale to the party named was proved, a sale to an unknown party would justify conviction.
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Earl Fisher was convicted of pursuing the business of selling intoxicating liquors in prohibited territory, and appeals.
    Affirmed. On motion for rehearing judgment of affirmance set aside, judgment of the lower court reversed, and cause remanded.
    Harry Tom King, of Abilene, for appellant. E. B.' Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for pursuing the business of selling intoxicating liquors in prohibited territory.

The allegations in the indictment sufficiently charge the offense, and that pursuant to said business the appellant made three sales of intoxicating liquors to one Alexander. There was evidence that appellant made the sales named in the indictment as well as other sales. So far as disclosed by the facts, he had no other occupation. Each of the sales was of a particular brand of whisky put up in pint bottles, and was delivered by appellant off of his person. On other occasions he was found in possession of packages of the same character, and there was proof of numerous consignments of intoxicating liquors to him and receipt by him therefor to the express company.

The indictment is attacked on the ground that it was found at a special term of court under circumstances that are unauthorized by law, in that a term of court was in session in another county in the same district at the time this special term was held. The facts are not materially different from those passed on in Elliott’s Case, 58 Tex. Cr. R. 200, 125 S. W. 56S, and upon the authority of that case the assignment is overruled.

The charge of the court is assailed upon various groúnds, among them that a special charge should have been given advising the jury that a conviction could not be had alone upon the proof of two isolated sales. The correctness of this principle is established by the statute and its construction in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and other cases following that case. It is not applicable to this case, however, for the reason that the conviction does not rest alone .upon such proof, but rests upon that and other facts and circumstances showing that appellant was engaged in the unlawful business named. Hightower v. State, 73 Tex. Cr. R. 258, 165 S. W. 188.

The jury was told in appropriate language that appellant’s conviction must be predicated upon proof beyond a reasonable doubt of the pursuit of the business of selling intoxicating liquors, and that in connection therewith there must be proof of two sales as alleged in the indictment.

A special charge on the subject of alibi was requested, but its refusal was not error, for the reason that that issue was fairly submitted in the main charge.

The criticism of the definition of the offense contained in the main charge 'cannot be sustained, for the reason that it was practically in the same language that was approved by this court in the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 602, 136 S. W. 260; Dickson v. State, 66 Tex. Cr. R. 270, 146 S. W. 918; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 584; Hernandez v. State, 64 Tex. Cr. R. 73, 141 S. W. 268; Atkinson v. State, 67 Tex. Cr. R. 364, 149 S. W. 115; Creech v. State, 70 Tex. Cr. R. 229, 158 S. W. 282.

There is no evidence that the witness Alexander was connected with the sale of intoxicating liquor in any way save that he was a purchaser of it, and there was no error in refusing to instruct the jury on the law of accomplice testimony as applied to him. Walker v. State, 72 S. W. 401; Mariner v. State, 47 Tex. Cr. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542.

Bill of exceptions No. 7 complains of the refusal of a special charge advising the jury that the witness Walker was an accomplice, and could not be the basis of conviction in the absence of corroboration. This bill of exceptions is not as specific as it should be, in that it fails to show what testimony the witness Walker gave, or to point it out in the statement of facts; nor does it disclose sufficient facts to enable the court to pass ufton its probable effect. These are things that have often been held essential in a bill of exceptions. Branch’s Ann. P. C. p. 131, §§ 207 to 214; Harris v. State, 64 Tex. Cr. R. 594, 144 S. W. 232; Vernon’s C. C. P. art. 743, p. 522, and cases. We have nevertheless examined the record, and it is disclosed thereby that the witness Walker testified as follows;

“I bought whisky from him in the back alley, behind J. Sides Confectionery; back on the west side. That is back of J. Sides’ store. Me and a white fellow were back in the alley there, and Earl come up about that time, and the white fellow says to me, ‘Have you got any whisky?’ the white fellow asked me about the whisky, and Earl came up, and I asked Earl if he had anything, and he says, ‘Ves,’ and the white fellows says— He just gave me $1.25, and I gave it to Earl. I got the whisky from Earl. Earl had the whisky with him right there. Ho handed the whisky to me, and I handed it to the white man. The white man was standing there in front, and he handed me the $1.25, and I gave it to Earl.”

We do not think that the court was authorized to assume, as a matter of law, that Walker was an accomplice. The evidence leaves this question in doubt, and if the court had been requested to submit the matter to the jury to determine whether he was an accomplice or not, a different and perhaps a serious question would have been presented. Wilkerson v. State, 57 S. W. 956; Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21; Brown v. State, 58 Tex. Cr. R. 336, 125 S. W. 915; Vernon’s C. C. P. art. 801, p. 736.

We will add that Walker’s testimony was not essential to a conviction. He was not one of the’ parties named in the indictment to whom specific sales were charged to have been made, and his testimony was but cumulative of other testimony in the record tending to show appellant’s pursuit of the business of selling intoxicating liquors. Under article 743, and a construction thereof, Vernon’s C. C. P. p. 502, we would not be authorized to reverse this case on account of this bill.

In bill of exceptions No. 9 complaint is made of an entry made in the express company’s record of shipments of intoxicating liquor, and also of the testimony of the agent of the express company that the express company’s books showed a delivery of whisky to the appellant on January 3, 1917. It appears that while the witness Kirk, the agent of the Wells Fargo and Adams Express Companies, was on the stand, he testified to the fact that upon a number of occasions he had delivered shipments of whisky to appellant, and in connection with his testimony affidavits made and signed by appellant to the effect that the liquor was not to be used or sold in violation of law were introduced. These cover various transactions during November and December, 1916, and January, 1917. One of these receipts bore date January 3,1916. Kirk testified that the receipt of the last-named date was incorrectly dated; that it should have been January 3, 1917. We understand from the testimony that the express company’s book showing a delivery of four quarts of whisky to have been made to appellant on January 3, 1917, was before the jury and proved up by Kirk as the book kept by the express company, and that this particular entry was in the handwriting of another agent of the company with whose handwriting the witness was familiar; and in connection with this he testified that the books showed the delivery of four quarts of whisky to appellant on the date mentioned. The admissibility of the express book was passed upon affirmatively by this court in Stephens v. State, 63 Tex. Cr. R. 382, 139 S. W. 1141, and in Atkinson v. State, 67 Tex. Cr. R. 364, 149 S. W. 114.

The book showing the entry being admissible and in evidence, there could be no reversible error in permitting the witness to state that the books showed this entry. His statement would be but cumulative of the fact disclosed by the book, of which fact the jury was informed by the book itself. This shipment was but one of a number of others received by appellant according to the undisputed evidence about the same time.

We have carefully reviewed the entire record, and find no reversible error ^ disclosed thereby, and therefore order the judgment of the lower court affirmed.

On Motion for Rehearing.

The indictment charged the pursuit of the occupation and business of selling intoxicating liquors in violation of law, and charged, as was required by the statute, that pursuant thereto appellant made two sales to H. H. Alexander, and added the following;

“The said Earl Fisher did make other and different sales of intoxicating liquors in violation of said law to persons whose names -are to the grand jurors unknown, and did then and there in the county of Taylor and state of Texas, during the months of November and December, 1916, and the month of January, 1917, and anterior to the presentment of this indictment, make more, at least, than two different sales of intoxicating liquors, in violation of said law, to some person (Sr persons to the grand jurors unknown.”

In its charge the court submitted the matter to the jury as follows:

“Now, if you believe from the evidence beyond a reasonable doubt that at the time alleged in the indictment local option was in force and effect in said Taylor county, and that the sale ’of intoxicating liquors was prohibited by law in Taylor county, Tex., if such were the case, and that the defendant on or about the 9th day of January, A. D. 1917, did, in the county, of Taylor and state of Texas, engage in and pursue the occupation and business of selling intoxicating liquors in said Taylor county, Tex., if he did do so, and that in pursuance thereof the said defendant, within three years next preceding the 15th day of February, A. 30. 1917, did make as many as two sales of intoxicating liquor in said Taylor county, Tex., if he did do so, as charged in the indictment, then you will find the defendant guilty of unlawfully engaging in and pursuing the occupation and business or selling intoxicating liquor in territory within which the sale of intoxicating liquor is prohibited, by law, and assess his punishment at confinement in the state penitentiary not less than two and not more than five years, as in your discretion you will determine, and so state in your verdict. Unless you should so believe from the evidence beyond a reasonable doubt, you will acquit the defendant.”

It was held by this court in Pitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, that an indictment under this statute was required to give the name of'the alleged purchaser of the intoxicating liquor touching two sales designated as essential in the statute. This holding has been uniformly adhered to, notably in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 584, and numerous other decisions.

The appellant excepted to the charge quoted above, upon the ground that it failed to require the jury, as a predicate for conviction, to determine from the evidence that two sales of intoxicating liquor had been made to the person designated in the indictment as the purchaser; and by it the jury was authorized to convict the appellant without finding the specific sales named in the indictment were made. Appellant also requested a special charge advising the- jury that there could be no conviction unless they found from the evidence that two sales of intoxicating liquor, as charged in the indictment, had been made to H. H. Alexander. There w;as evidence that the sales were made to H. H. Alexander as alleged. There was also evidence that appellant made a sale of intoxicating liquor to a witness by the name of Walker. Appellant insists that in this condition of the record harmful error was committed by the failure to give the jury a clearer understanding that appellant’s conviction could only be sustained in the event of a finding that he made two sales to Alexander, and that a finding that one sale was made to Alexander and one sale was made to Walker would not authorize a conviction, because Walker was not named in the indictment as a purchaser. In writing the original opinion our impression was that appellant’s rights in this respect had been protected by the paragraph of the charge quoted, which ad-vised the jury that two sales as charged in the indictment were requisite. In reaching this conclusion we overlooked the fact that the indictment contained, in addition to the allegation that sales were made to Alexander, a general allegation that sales were made to unknown parties. In view of this last allegation the jury may have been misled by the charge given so as to conclude that, although only one sale to Alexander was proved, a sale to Walker, the unknown party described in the indictment, would justify a conviction. In the case of Rhodes v. State, 75 Tex. Cr. R. 659, 172 S. W. 252, exactly the same question was before the court, and Judge Harper, delivering the unanimous opinion of the court, held that reversible error was committed by the trial court in giving a charge like the one given in this case and refusing to correct it in a requested special charge in substance like the one refused by the court in this case. The Rhodes’ Case, supra, is conclusive against the state, and the original opinion, being in conflict therewith, was erroneous.

We are not to be understood as holding that in a case where the names of the purchasers are unknown and cannot be ascertained by the grand jury an indictment cannot be drawn, and the prosecution maintained for this offense by following the procedure defined by the decisions of this court construing article 456, C. C. P., and listed in Vernon’s C. C. P. under said article.

We order that the judgment aifirming this cause be set aside, and that for the error pointed out the judgment of the lower court be reversed, and the cause remanded.
      (&wkey;>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®c=>For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. MORROW, J. DAVIDSON, P. J. PRENDBRGAST, J,

text:
    DOVER v. STATE.
    (No. 4463.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    1. Cbiminai. Law <&wkey;419, 420(11) — Admission ob1 Evidence — Conversation Not in De,- ' pendant's Presence.
    A conversation between witnesses relating to defendant’s guilt, but not had in his presence, was inadmissible.
    2. Criminal Law <&wkey;406(3) —Inculpatory Statements by Accused Made While under Arrest — Admissibility.
    Any inculpatory fact or circumstance involved in a statement by defendant while in jail or under arrest and when he has not been cautioned cannot be used as evidence against him in view of Code Cr. Proe. art. 810, providing that the conversation of the accused shall not be used if at the time it was made defendant was in jail or in custody of an officer, and such rule includes statements, although not technically confessions or admissions.
    Prendergast, J., dissenting.
    Appeal from Tarrant County Court; Jesse M. Brown, judge.
    Cleve Dover was convicted of larceny, and ’ appeals.
    Reversed and remanded.

      Mays & Mays, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., fot the State.
   PRENDERGAST, J.

Appellant was convicted for stealing an overcoat from Mr. Wal-drip at a dance a certain night in December, which was of less value than $50, a misdemeanor. The evidence was amply sufficient to sustain the conviction. On the other hand, if appellant and his witnesses had been believed, it was ample to have authorized his acquittal. It is unnecessary to recite it.

Appellant himself testified that about three days after the dance, while walking along the Frisco tracks going to his home in North Ft. Worth, he met a man who said he was “broke” and that he lived in Oklahoma, and asked him if he would buy the overcoat he had on his arm, and that he then did buy it from him and paid him $2 therefor. The evidence shows that appellant was wearing the overcoat alleged to have been stolen at the time he was arrested, and while under arrest and just after his arrest, the state was permitted to prove by the two officers who arrested him that at the time he told them he bought the coat out at the reservoir from an unknown man and paid him $2 for it. This testimony was objected to by appellant at the time for the reason that he was under arrest, and his said claimed statement to the officers was therefore inadmissible. The court admitted the testimony under the authority of Whorton v. State, 69 Tex. Cr. R. 4, 152 S. W. 1082, and Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, and authorities therein cited, holding that it was not a confession, but an exculpatory statement, and not prohibited from introduction by the statute. In said Gases of Whorton an'd Mason, supra, this court, in the opinions therein by Judge Harper, reviewed the authorities on this question, showing that the decisions of this court on the subject had theretofore been conflicting, and therein held, in accordance with the very great weight of authority and in accordance with several decisions of this court, that exculpatory statements such as were introduced in this case were admissible and were not prohibited by our statute (articles 809, 810, C. C. P.). What was said by this court in said Oases of Whorton and Mason on this subject will here be quoted. In the Whorton Case we said:

“Mr. Bouvier in his Law Dictionary defines a ‘confession’: ‘The voluntary declaration made by a person, who has committed a crime to another of the agency or participation which he had in the same. An admission or acknowledgment by a prisoner that he committed the crime with which he is charged.’ In Oye. vol. 8, p. 562, a confession is thus defined: ‘The acknowledgment of some fact, of a fault or wrong, or of an act or obligation adverse to one’s reputation or interest; an admission of something done antecedently. At common law an admission of a cause of action. In criminal law a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of - the act, or the share and participation which he had in it; the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same; a person’s declaration of his agency or participation in a crime; an acknowledgment of guilt; the acknowledgment of a crime or fraud.’ In this work are cited many authorities, among which is People v. Miller, 122 Cal. 84 [54 Pac. 523], wherein the Supreme Court of that state said: ‘In our law the term “admission” is usually applied to civil transactions, and to those matters of fact in criminal cases which do not involve criminal intent; the term “confession” being generally restricted to acknowledgment of guilt,’ — citing Greenleaf, Ev. § 170.
“In the Am. & Eng. Ency. of Law,- vol. 6, p. 521, the definition is thus given: ‘A confession is a voluntary admission or declaration by a person of his agency or participation in a crime. The term “confessions” is not the mere equivalent of the words “statements” or “declarations.” A statement or declaration to amount to a confession must be inculpatory and not exculpatory in its nature. Thus statements made by persons indicted together for the same offense, by which each charges the other without inculpating himself, and makes no reference to anything done in common as charged, are not confessions. Confessions as distinguished from admissions are acknowledgements of facts crim-inating in their nature, and not mere declarations against interest. Moreover, a confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgments of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions rather than confessions.’ Under this text are cited authorities from almost every state in the Union.
“In Words and Phrases the word ‘confession’ is said to mean: ‘A “confession” is a person’s declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt. A confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgments of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminat-ing admissions, rather than confessions. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.’ On pages 1418 and 1419, vol. 2, will be found a long list of authorities supporting this text.
“We have cited these authorities, for in our own decisions there is some conflict. Some cases hold that exculpatory statements are included in the statute governing the admissibility of confessions, while in a number of other cases the law is held as announced in the above authorities. Our present presiding judge (Davidson) in a well-considered case announced the law in accordance with these decisions. In the case of Ferguson v. State, 31 Tex. Cr. R. 93 [19 S.W. 901] he said:
“ ‘The statute (article 750 [810] of the Criminal Procedure) relates to confessions only, and does not extend to nor include within its meaning and provisions statements exculpatory of the defendant. A confession is inculpatory evidence, which connects or tends to connect the defendant, either directly or indirectly, as a guilty participant in the offense charged. Quintana v. State, 29 Tex. App. 401 [16 S. W. 258, 25 Am. St. Rep. 730]; Willard v. State, 26 Tex. App. 126, 9 S. W. 358; Eckert v. State, 9 Tex. App. 105; Andrews v. State, 25 Tex. App. 339 [8 S. W. 328].
“ ‘The statement made by defendant did not admit his guilt, and was not so intended by him when he made it. It neither connected nor tended to connect defendant with the theft, but, on the contrary, it was intended to exclude and rebut such inference. Instead of being an admission or confession of his guilt, it was intended as a denial of that fact. Same authorities.
“ ‘Such statements are made as well for the purpose of showing the absence of guilt as to manifest an innocent connection with the possession of the alleged stolen property by a defendant, and are intended to operate as exculpatory of guilt and crime. This character of evidence is elicited for the purpose of explaining the defendant’s possession of the property, when his right thereto is called in question. While contradictory statements made by a defendant, as to his possession of property recently stolen, may be given in evidence, yet such statements have not been held to be “confessions” of guilt under the statute. If such accounts are to be treated as confessions of guilt, it would not devolve upon the state to disprove them, as a prerequisite to a conviction, nor would the court be authorized or required to charge the jury that such account must be disproved in order to warrant a conviction. Eckert v. State, 9 Tex. App. 105.’
“Many cases besides those cited in this opinion might be referred to, but we deem it unnecessary, as the rule is so clearly stated in the Ferguson Case. However, in the case of Morales v. State, 36 Tex. Cr. R. 234 [36 S. W. 435, 846], the Quintana Case in 29 Tex. App. 401 [16 S. W. 258, 25 Am. St. Rep. 730], and other cases holding that the confessions of a defendant made while under arrest, although not taken in conformity with the statute, were admissible, were overruled, but the court expressly limited its action to those instances where the statements offered were confessions of guilt, the court in the Morales Oaso stating: ‘The matter inquired about in this case was a confession, and it is not necessary here to discuss the question involved in the cases above referred to as to whether the statements there made by the defendants were in the nature of a confession or not’ — in the Morales Case the court only holding that a statement in itself of a confession of guilt was inadmissible if not taken in conformity with the statute, even though the defendant became a witness, pretermitting altogether a discussion of whether or not exculpatory statements were included in the statute governing admissibility of confessions. And yet in some instances this case has been sought to be used as excluding exculpatory confessions, when a careful reading of it will demonstrate it does not so hold. This question is again discussed in Parks v. State, 46 Tex. Cr. R. 100 [79 S. W. 301], and it again held if the statements are inculpatory they are not admissible, and in some of the cases it may be said that the language used is broad enough to include exculpatory as well as inculpatory statements under the statute governing confessions, and because of these two conflicting lines of decisions in our own court, we have made as thorough investigation of this question as the books at our command would permit, and we have come to the conclusion that the great weight of authority upholds the opinion of Presiding Judge Davidson in the Ferguson Case, supra, and the statutes governing the admissibility of confessions do not apply to nor include statements which are wholly exculpatory, even though the state should introduce other evidence showing such exculpatory statements are false. That such is the correct rule we have no doubt, for the reasons for the adoption of a statute excluding confessions of guilt, except under given circumstances, cannot and in no sense do or would apply where a defendant makes a statement which, if true, would conduce to show his innocence. Mr. Chamberlayne, in his work on I Modern Law of Evidence, vol. 2, beginning on page 1863, treats of this question at length, among other things saying: ‘There is no branch of the law of evidence in such inextricable confusion as that relative to confessions. The general rule that a confession, a statement by one accused of crime directly or by necessary inference admitting his guilt, is receivable in evidence, provided it complies with certain requirements of procedure, is not questioned in any quarter. The difficulty with regard to the matter is, in large measure, due to the fact that an attempt is being made, in this connection, on certain alleged grounds of public policy, rigidly to maintain rules of procedure, as matters of substantive law, which are hax-d to sustain in point of reason. Just here has been, as it were, a fierce struggle in the law of evidence between the formalism of the past and the rationalism of the future. * * * It follows from the very definition of a confession that it must, as a total, incriminate the declarant, as to the crime charged in the indictment. It is not sufficient that the alleged confession should be a statement by one accused of crime admitting that he committed the overt act, if at the same time he sets up a justification, as self-defense, or other exculpation, so that, when the entire effect of the statement is regarded, it is exculpatory. Such a declaration as has been described while admitting a fact is, in effect, a denial of the liability legally arising from the existence of the fact admitted. It is not therefore a confession, and is accordingly admissible under conditions which would exclude an actual confession, i. e., an inculpatory statement.’ Under this text in Mr. Chamberlayne’s work will be found collated an exhaustive list of authorities.
“As the statement testified to by the officer was wholly exculpatory, the court did not err in admitting it. We have written at length on this proposition, as some of our decisions have used language that one could hardly tell whether exculpatory statements were included in the term ‘confession’ as well as inculpatory statements, and as, in our opinion, only inculpatory statements are included, it necessarily follows that it is only when the statement is inculpatory in its nature it is inadmissible, unless it has been reduced to writing in accordance with the requirements of our Code. If the statement is wholly exculpatory, the state may introduce it as a circumstance in the case to be considered with the other evidence.”

And in said Mason Case we quote what was there said as follows:

“In Whorton’s Case we discussed the distinction between exculpatory statements and incul-patory statements, or confessions, and frankly admitted that the authorities in this state were in conflict, and we then carefully considered those cases now cited by appellant, and overruled them; but, that no mistake may hereafter be made, we here and now expressly overrule each of the eases, holding that exculpatory statements come within the same rule as confessions of a defendant. In addition to the authorities in Whorton v. State [09 Tex. Or. R. 1] 152 S. W. 1082, we have had our attention called to Wigmore’s Work on' Evidence, § 821, vol. 1. That learned writer says:
“ ‘What is a confession? Denials, guilty conduct, and self-contradictions, distinguished. A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. It is to this class of statements only that the present principle of exclusion applies. In this sense, therefore, there are in particular three things which fall without the meaning of the term “confession,” and are thus not affected in any way by the present rules, namely: (1) Guilty conduct; (2) exculpatory statements; and (3) acknowledgments of subor-díñate facts colorless with reference to actual guilt.
“ ‘(1) The conduct of an accused person falls clearly without the present principle, . which rests on the theory that the trustworthiness of the accused’s assertions is destroyed or weakened by circumstances supplying a motive for false assertion. Post, § 822. That which is not an assertion, in some form or another can therefore not he within the scope of such a principle; its probative use is not testimonial but circumstantial; and the frequency of its employment, free from the present rules, may be seen by perusing the numerous rules of circumstantial evidence (ante, §§ 272-284) which apply to such evidence. The accused’s conduct therefore, consisting in fleeing from arrest, concealing the traces of crime, fabricating evidence, suppressing testimony, and other behavior indicative of a guilty consciousness, falls without the present rules.
“ ‘(2) Exculpatory statements denying guilt cannot be confessions. This ought to he plain enough, if legal terms are to have any meaning and if the spirit of the general principle is to be obeyed. This necessary meaning for the term “confession” is generally conceded.’
“In commenting on this rule of law Mr. Wig-more says: ‘The authorities dealing with this class of evidence sufficiently show that it is admitted without regard to the confession rules. In the courts of Texas alone, it would seem, the heresy prevails that conduct may be treated as a confession.’
“Again he says: ‘In Texas the sound doctrine originally accepted seems to have been ignored later’ — citing Eerguson v. State, 31 Tex. Or. R. 91 T19 S. W. 901],
“The Ferguson Case was cited and followed in Davis v. State, 24 S. W. 651, and by examining our reports it will be found that the rule of law announced in the Ferguson Case was followed from the organization of our courts until the rendition of some later opinions, when the court undertook to give to the term ‘confession’ as used in our Code a meaning never theretofore attributed to the word, and which now has not the sanction of any text-writer so far as we have been able to ascertain. As supporting the rule of law as announced by Mr. Wigmoi-e, and that the doctrine in the Bailey Case, 40 Tex. Cr. R. 150, 49 S. W. 102, is a ‘heresy,’ as said by that eminent law-writer, he cites eases from almost every state in the Union, and gives a history of the rule showing much research and learning. Pentecost v. State, 107 Ala. 81, 18 South. 146; People v. Ammerman, 118 Cal. 23, 50 Pac. 15; Mora v. People, 19 Colo. 255, 35 Pac. 179; 1810, Swift, Evidence (Conn.) 133; Powell v. State, 101 Ga. 9, 29 S. E. 309, 65 Am. St. Rep. 277; State v. Spillers, 105 La. 163, 29 South. 480; Taylor v. State, 37 Neb. 788, 56 N. W. 623; State v. McDowell, 129 N. C. 523, 39 S. E. 840 State v. Vaigneur, 5 Rich. (S. C.) 400; Goodwin v. State, 114 Wis. 318, 90 N. W. 170; Michaels v. People, 208 Ill. 603, 70 N. E. 747; State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533, 9 Ann. Cas. 1203 State v. Thomas, 135 Iowa, 717, 109 N. W. 900; State v. Royce, 38 Wash. 111, 80 Pac. 268. 3 Ann. Cas. 351. Wo could continue these citations from this and other works indefinitely; but, in addition to the authorities herein cited and cited in the Whorton Case, supra, we will only quote the following short excerpts from Mr. Wigmore’s work:-
“ ‘1846, Ruffin, C. J., in State v. Broughton, 29 N. C. 101, 45 Am. Dec. 507: “It is altogether a mistake to call this ‘evidence of a confession by a prisoner.’ It has nothing of that character. It was not an admission of his own guilt, but, on the contrary, an accusation of another person. That it was preferred on oath in no way detracts from the inference that may be drawn from it unfavorably to the prisoner, as being a false accusation against another, and thus furnishing, with other things, an argument of his own guilt.”
“ ‘1862, Rice, X, in State v. Gilman, 51 Me. 225: ‘The declarations of accused persons are not necessarily confessions, but generally, on the other hand, they are denials of guilt, and consist in attempts to explain circumstances calculated to excite suspicion.” ■
“ ‘1895, De Witt, X, in State v. Cadotte, 17 Mont. 315, 42 Pac. 857 (the accused took the stand to explain how in self-defense he killed the deceased; the state offered various previous explanations of his, showing self-contradictions): “The other objection was that a portion of this testimony was a confession by the defendant, and it was not shown that such confession was made freely. * * * We are satisfied that, the statements of the defendant sought to be proved were not confessions at all. Instead of being confessions of guilt, they were statements of his self-defense, statements in which he admitted the killing, and endeavored to show that he was obliged to kill to save his own life. They were admissions, to be sure, of the killing, but self-defending statements as to the same. And this was precisely the position he occupied upon the trial. He relying on self-defense for acquittal, it was competent to attack his credibility by proving statements made out of court as to tlie self-defense, contrary to those which he made as a witness on the trial.”
“ ‘1899, Granger, X, in State v. Novak, 109 Iowa, 717, 79 N. W. 465: “Inaccurate use of such words as ‘confessions,* ‘admission,’ and ‘declarations’ has led to some confusion in the cases; but, on authority and reason, there is a clear distinction between a confession and an admission or declaration, unless the admission or declaration has within it the scope and puipose of a confession, in which its distinctive feature, as an ■ admission or declaration, is lost in the broader term ‘confession.’ A confession is a voluntary admission or declaration by a person of his agency or participation in a crime. * * * To make an admission or declaration a confession, it must in some way he an acknowledgment of guilt. * * * The manifest purpose of (the defendant’s) statements was to show himself innocent, and, if his statements are true, he is innocent of the crime charged; so that by no possibility could he have been induced, because of- the promise of secrecy, to rdln.te what was untrue, to his prejudice.” ’
“The effort made in some of the cases in this court to give to the term ‘confession,’ as used in the statute, a definition and meaning to include all character of statements, is, in our opinion, unwarranted, against the great weight of authority, and as said in the Whorton Case, supi’a, we adhere to the rule announced in the case of Ferguson v. State, 31 Tex. Cr. R. 93, 19 S. W. 901, which Mr. Wigmore says is the sound doctrine, and that in Texas alone is the ‘heresy’ announced in the Bailey Case, 40 Tex. Cr. R. 150, 49 S. W. 102, given any recognition.”

And, in addition to the authorities cited in said Whorton and Mason Oases, we cite the following, which are exactly in point and hold directly in accordance with the Ferguson Case, supra, and cite and approve it: Young v. State, 61 Tex. Cr. R. 305, 135 S. W. 127; Corporal v. State, 24 S. W. 96. It ought to be, and is, settled in this state that exculpatory statements by an accused under arrest are not prohibited from introduction in evidence against him as a confession, and the court properly admitted the testimony objected to in this cause. This case is on all fours with said Ferguson Case, supra, and cannot be distinguished therefrom.

Over appellant’s objections the court permitted Mr. Waldrip to testify that Mr. Kenney, another state’s witness, about a week after the overcoat was taken, told him that appellant had his overcoat, and also over his objections permitted Mr. Kenney to testify in substance that about a week after Wald-rip’s coat had been taken he told Waldrip he ■was quite sure that appellant had his overcoat, and that he heard appellant say on that night that he wasi going to get one, and that he picked up a gray coat, and went off into another room with it, and he thought it was Mr. Waldrip’s coat. The bills show that appellant was not present when these witnesses had the said conversation between themselves, did not hear it, and knew nothing about it. This testimony was clearly inadmissible. See 2 Vernon’s Crim. Stats, p. 639, where some of the cases so holding are collated.

For the error of the admission of this testimony by Waldrip and Kenney, the judgment is reversed, and the cause remanded.

MORROW, J.

(concurring). In agreeing to the reversal of this cause, we deem it proper to state that in our judgment the testimony given by the officers who had appellant under arrest, that while under arrest, without warning, he made in their presence a verbal statement which was used on the trial against him, was not admissible. The Code of Criminal Procedure (article 810) provides that:

The “confession [of the accused] shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him, which written statement shall show that he has been warned by the person to whom it was made.”

The purpose and effect of this statute is to prevent the prosecution from using against the accused the testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks' to use to prove his guilt.

The correct rule, we think, is stated in Hernan’s Case, 42 Tex. Cr. R. 464, 60 S. W. 766, which is summarized in the syllabus as follows:

“A confession or admission of an inculpatory fact by a defendant, where he is under arrest and unwarned, cannot -be used as evidence against him. Any fact or circumstance involved in a statement by defendant while in jail or under arrest, and when he has not been cautioned, which may be used by the state as a crim-inative or inculpatory fact against him, comes within the statutory rule as to confession, although the same may not be technically a confession or admission. And defendant cannot be impeached as to such statements, following Bailey v. State, 40 Tex. Cr. R. 150 [49 S. W. 102].”

Other eases in point are the following: Wright v. State, 36 Tex. Cr. R. 432, 37 S. W. 732; Williams v. State, 10 Tex. App. 527; Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301; Brown v. State, 55 Tex. Cr. R. 581, 118 S. W. 139; Adams v. State, 16 Tex. App. 172; Wimberly v. State, 22 Tex. App. 510; Rogers v. State, 44 Tex. Cr. R. 353, 71 S. W. 18; Binkley v. State, 51 Tex. Cr. R. 57, 100 S. W. 780; Nolen v. State, 9 Tex. App. 419.

DAVIDSON, P. J.

I concur with Judge Morrow that inculpatory statements by party under arrest cannot be used against him.

PRENDBRGAST, J,

I dissent from the proposition decided in this concurring opinion. The question is, both by reason and authority, correctly decided in the opinion I have written herein.
      ÉswFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes