Bailey v. State , 40 Tex. Crim. 150 ( 1899 )

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ten years, and he prosecutes this appeal.

Appellant reserved an exception to the examination of himself while on the witness stand as to certain statements made by him while in jail, under arrest, without having been warned; that is, the State was permitted to ask him if he did not state to John Appling, a deputy sheriff, after his arrest, that he remembered nothing about the difficulty, as to how it occurred, etc. Over the objections of appellant, he answered that he did not remember having made the statement. Defendant objected to this testimony on the ground that it was a statement or declaration made by defendant while he was in jail, without due caution. The State then introduced the witness John Appling, and proved by him, over appellant's objection, that, after he had arrested defendant, defendant told him he knew nothing about the killing of Bane, and did not remember being at the gin at all, etc. The witness in this connection stated that he had not warned appellant. This testimony was likewise objected to, on the ground that it was incompetent for the State to go into the jail, and lay a predicate by defendant, he not having been warned, and then contradict him by other evidence.

The court seems to have admitted this testimony on the ground that this was not a confession, and so did not come within the rule laid down in Morales v. State, 36 Texas Criminal Reports, 234. This case, which has been subsequently followed by this court, lays down the doctrine that it is incompetent to lay a predicate as to confessions of guilt made by defendant in jail, in order to contradict him by another witness. In that case the predicate laid was a direct confession on the part of defendant of his guilt of the crime charged. This he denied, and the State was permitted to contradict him by evidence of another witness to the effect that he did while in jail make the alleged statement confessing his guilt to him. This testimony was limited by the court to the purpose of contradiction. While a rigid construction of the statute might confine the testimony strictly to technical confessions of guilt, yet we believe the terms of said statute have a broader signification, and that it was intended to protect a defendant while in jail, and to prevent the State going into the jail, and proving inculpatory or criminative facts against defendant by declarations or statements, he not having been warned, as the statute requires. This seems to be the construction as held in Fulcher v. State, 28 Texas Criminal Appeals, 465. In that case the State proved against defendant, over his objection (not having been warned), that after his arrest he seemed agitated, and turned pale. The court said upon this point: "Where the confessions of a defendant under arrest are inadmissible against him, because made while he was uncautioned, his acts, if tantamount to such a confession and done under similar circumstances, are likewise inadmissible." Of course, it would be conceded that, if appellant had told the deputy sheriff how the killing happened, his testimony under such circumstances would be inadmissible against him as original testimony to show how the killing was done; and we hold that it would be equally inadmissible for the State to introduce a confession of a defendant showing that the crime was committed in a certain way, and then in order to contradict him, to prove that it was done some other way, and thus, having laid the predicate, contradict him by showing that it was done some other way. In this particular case the witness stated that he had no recollection of the homicide, and how it was done. Ordinarily, it would be immaterial; but the defendant testified hero, and told circumstantially how the homicide occurred; and his evidence made out a case of self-defense. Now, to contradict him as to this matter, the court permitted the State to prove by a witness that while defendant was under arrest, and not having been cautioned, he told said that he did not know how the homicide occurred, and had no recollection of it. This contradiction of appellant was exceedingly hurtful to him, and five hold that it was not admissible to contradict him by this character of evidence. In our opinion, the statute relating to confessions is not confined strictly to a technical confession, but covers any fact or circumstance involved in the statement of a defendant made while in jail or under arrest, and not having been cautioned, which may be used by the State as criminative or inculpatory against him. The case in every other respect was admirably tried, and we find no other error in the proceedings, except as above discussed. For the error of the court in admitting said testimony as presented in defendant's bill of exceptions, the judgment is reversed and the cause remanded.

Reversed and remanded.