Rhodes v. State , 11 Tex. Ct. App. 563 ( 1882 )

White, P. J.

The rules with regard to confessions of a party when under arrest are not applicable to the acts of appellant Amanda Rhodes, which were by the court admitted in evidence over objection of defendant. She made no confession. After her daughter Mary had made disclosures concerning the money, the accused voluntarily raised a plank and appeared to be searching for the money. She subsequently produced and handed the officer the gold and silver ($19), part of the stolen money. Evidence of this latter act or fact was not objected to, and is not now complained of. It was a much more conclusive and damaging confession of guilt than the raising of the plank; and yet we scarcely imagine that it will be contended that such evidence would have been illegal and inadmissible if it had been objected to. A distinction has always been made between acts performed and confessions made by a defendant whilst under arrest. The former are admitted, whilst the latter are not unless coming strictly within the letter of the statute. This distinction was clearly drawn in the case of Elizabeth v. State, 21 Texas, 329, wherein it was held that, independent of the confession, the acts of the accused in going to the pool of water and bringing from it the dead body of the murdered child were admissible in evidence against her. See also Walker v. State, 7 Texas Ct. App. 245; Preston v. State, 8 Texas Ct. App. 55.

Nor did the court err in declining to charge the law governing accomplice testimony with reference to the evidence of the witness Mary Rhodes. There is in the record no fact tending to connect this witness as an accomplice with her mother in the theft of the money, save the fact that before her arrest she denied any knowledge of the money and the lady’s companion containing it. “Such statements are not evidence of crime where the testimony clearly indicates others as the offenders and furnishes another motive for such statements than concealment of the guilt of the party making them.” Porter v. State, 43 Texas, 367.

Besides this, no charge was requested on the subject of accomplices; no exception was reserved to the charge for omission in that respect, and no objection to that effect was urged against the charge in the motion for a new trial. And while it is the duty of the court in felony cases to charge the law applicable to every legitimate phase of the case, yet a reversal will not necessarily ensue where the error has not been pointed out in the trial court, unless so fundamental and manifest as to be palpable and radical. But, as was said before, this was not a legitimate phase of the case, there being no evidence going to show that the witness Mary was an accomplice with defendant in the theft of the money. She picked up the companion containing the money, and, at the instance of her mother, put it in the sack she was carrying,— carried it home, neither she or her mother knowing that it contained the money. She carried the sack and contents home, and after reaching there took out the lady’s companion, opened it, and for the first time the parties discovered the money. Further than that she had nothing to do with the theft. At that time necessarily the fraudnlent intent to steal and appropriate the money must for the first time have been entertained by the mother. Up to that time she was not aware that the companion contained it; it, the money, was to all intents and purposes still lost up to that time. And whilst her possession of the companion was lawful at the time she found it, the taking and asportation of the money within it was an involuntary act, because she did not know of its existence, and she could not then have entertained any intent, felonious or otherwise, with regard to it, so long as she was ignorant that it was in her possession. When she discovered the money upon her arrival at home, that was the first moment at which she could possibly have formed and entertained a purpose and intent with regard to it. Up to that time the money was lost. Robinson v. State, ante, p. 403.

Taking that as the initial point, and we are of opinion that her guilt is clearly established by the evidence. At that very time she had the means of ascertaining who the owner was. For Mrs. Stephens, the owner, swears that the companion also contained a large piece of pasteboard with her1 (Mrs. S.’s) name on it. This certainly was all defendant needed to ascertain the owner. It was sufficient to put her upon inquiry. And though she might not have been able to read herself, and in that way find the owner, she might still, as soon as possible, with little trouble have sought some one who could and would have given her the information. If she did not intend to steal the money at that time, how is her conduct to be reconciled with the hypothesis of her innocence. See Robinson v. State, supra.

The charge of the court presented fully the law of the case, and no error is made apparent, sufficient to require a reversal of the judgment. The verdict and judgment are amply sustained by the evidence.

The judgment is affirmed.

Affirmed.