Whorton v. State , 69 Tex. Crim. 1 ( 1913 )

I cannot agree with my brethren in the disposition of this case on several questions, some of which I deem unnecessary to discuss.

The State introduced what was intended to operate as a confession through the witness Barker, as it did also what purports to be a written confession under the statute, which is sufficiently shown in the majority opinion without reproducing here. These statements, without reviewing all of them, as shown by Barker's testimony and by the purported written confession introduced against appellant on the trial, were introduced against him, and while exculpatory on their face, in the main, yet they were introduced by the State as inculpatory, and as a basis for contradiction of appellant's statements by showing that the statements were false. This, of course, operated as incriminating evidence against him if his statements that he was in Fort Worth were proved to be false. It is a well recognized rule of decision in this State, and is thoroughly embedded in our jurisprudence, that where an explanation is given by the appellant, which would tend to exclude guilt, is used by the State as incriminating evidence by showing its falsity, it has been regarded as a confession or as incriminating. This means of producing a confession is familiar with the profession and the bench of Texas, and comes perhaps more often under the doctrine of reasonable explanation of possession of property which has been recently stolen. Such explanation is introduced by the State and then attacked by testimony showing it to be false, thus making it operate as a confession of guilt. By this means the State shows, or attempts to show, the fact that the defendant was manufacturing a defense and stating falsehoods about the transaction, and this being shown by the testimony, of course, the statement would operate as incriminating evidence in the nature of a confession. This is so thoroughly understood I think it unnecessary to discuss it at any length. That I am correct about this in this particular case is evidenced by the charge of the learned trial court, which was given in the following language: "The State offered in evidence what it claimed to be a confession of the defendant. This was offered as to the offense set out in the first three counts in the indictment, to wit: forgery. The same was not applicable to the fourth count in the indictment, to wit: knowingly and fraudulently passing as true a forged instrument, and it is not evidence as to the charge set out in said count, and you will not consider it as any evidence as to the charge set out in the fourth count, to wit: knowingly and fraudulently passing as true a forged instrument." The learned judge who tried this case below has the record of being a very learned, able and conscientious trial judge, with a record reaching back as long almost as any other trial judge in the State. He understood, as all the lawyers, I think, will understand, that the statements introduced by the State, that of Barker and the written confession of defendant, were treated as a confession and introduced as a confession, and the court so charged the jury, and in doing so he limited it to the three counts setting up forgery, and excluded the consideration by the jury of the fourth count, which charged him with knowingly and fraudulently passing as true a forged instrument. The jury evidently understood it as a confession, as did the trial judge, as evidenced by the above quoted charge given the jury. Then this being true, and having been so charged to the jury, it was a confession so far as the effect of it upon the jury is concerned. My brethren hold that it was not a confession, yet they fail to reverse because of the charge given by the court, and they hold the court did not err in failing and refusing to charge that if it was exculpatory, as my brethren claim it was in the opinion, that then unless the State proved it false the jury should acquit. The appellant to meet this matter and counteract as well as he could the charge of the court, requested the following instruction:

"You are charged that, the State having introduced in evidence statements of the defendant, which, among other things, contained statements to the effect that defendant was not in Weatherford, Texas, on the day of the alleged offense, then you are charged, that the whole of said statements are to be taken together, and the State is bound by them unless they are shown to be untrue by the evidence; and such statements are to be taken into consideration by the jury as evidence in connection with all facts and circumstances of the case."

Again, the trial court was requested to give this instruction: "You are charged that the State having introduced in evidence the statement of the defendant to the witness Barney Barker, to the effect that he was not in Weatherford, Texas, on the day of the alleged offense herein, is bound by said statement unless same is disproved by evidence; and, in this connection, you are charged that if you entertain a reasonable doubt of the presence of the defendant at the place where the offense, if any, is alleged to have occurred, at the time said acts, if any, were committed, and entertain a reasonable doubt that at any such time he may not have been elsewhere, the defendant is entitled to the benefit of that doubt, and the jury should acquit him."

The court not only refused these instructions, but gave the one above quoted, and informed the jury, in substance, that it was a confession, and limited that confession to the consideration of the facts by the jury to the counts charging forgery. How, under all these circumstances attending this trial, this evidence and these charges, it can be said the defendant had the law of his case fairly presented to the jury, I do not understand. It is met to some extent by my brethren, who seem to be of the impression that because the court charged the jury on alibi, that that was sufficient in these respects. If an alibi was all that was involved in it, there might be some color of strength in their statement, but that does not meet the exculpatory statements as contained by appellant. The authorities, as I understand them, sustain appellant in these matters. To correct these rulings of the trial court, especially in reference to the charge above mentioned, appellant requested and the court refused the requested instructions above set out. The State introduced this evidence from Barker, and the written confession as criminating testimony, and then introduced all the testimony they could find to show the falsity of his statement as indicative of appellant's guilt. The court's charge was error, as I understand the law, and it was also error to refuse the requested instructions under the long line of well considered cases. Pharr v. State, 7 Texas Crim. App., 472; Jones v. State, 29 Texas Crim. App., 20; Pratt v. State, 50 Tex.Crim. Rep.; Combs v. State, 52 Tex. Crim. 617; Baggett v. State, 144 S.W. Rep., 1136; 1 Greenlead on Evidence (9 ed.), Secs. 218, 219, 442, 443; 1 Bish. Cr. Pros., Secs. 1235, 1236. For many other cases see cases cited. These matters were properly saved in the court below and timely presented there and here.

From the standpoint of the State's evidence, the jury was warranted in finding that appellant was in Weatherford a part of the day until about say 3 or 3:30 o'clock in the evening. From the defendant's standpoint, and the statement introduced against him through Barker, and the purported written confession, he was not in Weatherford at all during the day, and these latter matters were all introduced by the State. They were exculpatory on their face, showed an impossibility for him to have passed the forged instrument or committed the forgery on the day indicated. Under all the authorities, so far as I know about, from any standpoint, if he was not in Weatherford on the day of the alleged forgery and passing the instrument, and the State relied upon the fact that he was there to prove his guilt, then having introduced evidence that he was not there, it was incumbent upon the court to charge the jury that the State must show the exculpatory matters false, otherwise the jury would acquit. It may be stated as a sound proposition, and the writer thinks it not debatable, if the action of the court probably brought about a more injurious verdict to appellant than would probably have otherwise occurred without such action, that action or ruling becomes reversible error. If the court had charged the jury as the law has been laid down in the decisions in Texas, the jury might have given appellant a much more favorable verdict, even an acquittal. If the jury had been instructed that the State must show this evidence false in order to secure a conviction, the jury might have found him not guilty. Wherever the ruling, being erroneous, leads, or probably leads, to a conviction, it is reversible error. Or concede the guilt of the defendant, if the action of the court is error and he received a higher punishment than the minimum, then the error is fatal and a reversal should occur. The accused is entitled to a fair trial under the rules of law. It is not sufficient that this court may think the defendant is guilty as a justification to set aside or override the well established principles of law or settled jurisprudence. I wish here to reproduce some observations of Judge Roberts, than whom no greater judge has ever occupied the bench in Texas or any state in the Federal Union His name has been a household word as a great judge wherever our jurisprudence is known, and in Texas it would be a useless consumption of words to eulogize his memory both as statesman and jurist. In Duncan v. Magette, 25 Texas, at page 245, this language, written by Judge Roberts, is found:

"Although the counsel on both sides rely upon the rules of law as respectively presented by them, it is obvious that the great argument, whether expressly developed or not, by which those rules are sought to be discovered, interpreted and enforced, consists in an appeal to the sense of justice of the court. The opinion of the court in this case does not yield to the force of that appeal. Having written it, I avail myself of the opportunity afforded by this application, to present my own views upon the foundation and force of this appeal to the sense of justice of the court, whether used as an influencing consideration, in interpreting and enforcing the rules of law, or directly urged as the basis of judicial action. A frequent recurrence to firstprinciples is absolutely necessary in order to keep precedentswithin the reason of the law. (Italics mine.)

"Justice is the dictate of right, according to the common consent of mankind generally, or of that portion of mankind who may be associated in one government, or who may be governed by the same principles and morals.

"Law is a system of rules, conformable, as must be supposed, to this standard, and devised upon an enlarged view of the relations of persons and things, as they practically exist. Justice is a chaotic mass of principles. Law is the same mass of principles, classified, reduced to order, and put in the shape of rules, agreed upon by this ascertained common consent. Justice is the virgin gold of the mines, that passes for its intrinsic worth in every case, but is subject to a varying value, according to the scales through which it passes. Law is the coin from the mint, with its value ascertained and fixed, with the stamp of government upon it which insures and denotes its current value.

"The act of moulding justice into a system of rules detracts from its capacity of abstract adaptation in each particular case; and the rules of law, when applied to each case, are most usually but an approximation to justice. Still, mankind have generally thought it better to have their rights determined by such a system of rules, than by the sense of abstract, as determined by any man, or set of men, whose duty it may have been to adjudge them.

"Whoever undertakes to determine a case solely by his ownnotions of its abstract justice, breaks down the barriers bywhich rules of justice are erected into a system, and therebyannihilates law. (Italics mine.)

"A sense of justice, however, must and should have an important influence upon every well organized mind in the adjudication of causes. Its proper province is to superinduce an anxious desire to search out and apply, in their true spirit, the appropriate rules of law. It cannot be lost sight of. In this, it is like the polar star that guides the voyager, although it may not stand over the port of destination.

"To follow the dictates of justice, when in harmony with thelaw, must be a pleasure; but to follow the rules of law, in theirtrue spirit, to whatever consequence they may lead, is a duty.This applies as well to rules establishing remedies, as to thoseestablishing rights. These views will, of course, be understoodas relating to my own convictions of duty, and as being the basisof my own judicial action." (Italics mine.)

In thus stating the rules of law, drawing the distinction between abstract or substantial justice, if you please, no better statement has been made. If so it has not come under the observation of the writer, and the above quotation comes from the pen of the great Roberts. If he had not written anything else as an opinion than the above, or if his great mind had not thrown light upon any other page of judicial history, this quotation is enough to have immortalized his name and memory as a great judge. In these latter days, where the great principles and rules of law are sought to be diverted from their high office and position in the machinery of government, this language of Judge Roberts is peculiarly applicable. It is necessary to at least occasionally refer to the first principles of law, right and justice in order that the jurisprudence of our country may be kept pure and uncontaminated by strenuosity or other outside influences that seek to attack the citadel of liberty or bring about its fall. I do not know that anything could be added to what Judge Roberts said. I doubt if the precision, accuracy and strength of the proposition will ever be stated in finer language or in terser strength. It affords the writer pleasure occasionally to go back to first principles and see what the great fathers of our jurisprudence wrote and what they thought is meant by constitutional government in this country. This may be out of joint and harmony with the times, but it is right; and right, truth and justice in the end will prevail. I shall be content to agree with the great judges who have written along this line heretofore and let whatever of work, writing, and conviction of the right attributable to me in the judicial history of my country go hand in hand with the above quotation from Judge Roberts.

There is another question in the case that I believe ought to reverse the judgment, but my brethren have not thought so, and in order to reach that conclusion had to overrule some of the previous work of this court. The question I refer to is the reproduction of the evidence of a man named Bryant, who had on a former occasion testified in the case. The testimony was reproduced through the witness Erwin. He stated that he was constable who succeeded as such the absent witness Bryant; that he knew Bryant when he lived in Parker County, and heard from him on the 3rd of January. That Bryant left this country with his (witness') knowledge, and that when he went away he took his household goods and effects with him. Witness knew at the time Bryant left Parker County that he said he was moving out of the State; that Bryant so informed him, and further that he was going to some point in Georgia. That since Bryant left witness had received a letter from him through the mail. He said: "I am pretty sure this is his signature to the letter." He testified he had also received a money order from Bryant. The witness had never seen Bryant in Georgia, and had never seen him anywhere out of the State, but saw him the day he left; he was then in Texas. Quoting from him: "I do not know his whereabouts only by this letter and the money order, December 4, the date of this letter, and January 3, some four months ago. I do not know at this time where he is; could not swear that he is not in Texas at this time, or for the last month, or two or three months. All I know of his whereabouts is by the letter and by a money order I got. That was December 4 I got the money order, and then he wrote the other letter." This occurred about ten days after Bryant is supposed to have left the State, that he received the money order. This is the predicate and all the predicate introduced by the State as a basis for the reproduction of the testimony of the alleged absent witness Bryant. Under none of the authorities that have been called to my attention is this sufficient. It has always been held in all the cases that the bare fact that the witness was out of the State at the time of the second trial would not of itself be sufficient ground for admitting proof of his former testimony in a criminal prosecution, unless admitted by counsel. This proposition was asserted in Sullivan v. State, 6 Texas Crim. App., 319. In that case this language is found as a predicate: "He (the absent witness) was here for several months, to see after his brother, who was in jail, charged with murder. He was here from January until August of last year. He went away out of the State. I wrote a letter to the postmaster at Marion, Massachusetts, inquiring for Owen Dean. I got a reply, he says, saying that Dean was at Boston, Massachusetts. Among his friends and acquaintances it is generally understood that he is at Boston, Massachusetts. He said that Dean came here from Boston, Massachusetts." The court said this was not sufficient, and reversed the judgment in the Sullivan case. This rule has been followed in the other cases cited wherever the question has come. This proposition has been reasserted as late as Pace v. State, 61 Tex.Crim. Rep.. See also Cooper v. State, 7 Texas Crim. App., 194; Martinas v. State, 26 Texas Crim. App., 91; Menges v. State, 21 Texas Crim. App., 413; Ripley v. State, 58 Tex.Crim. Rep.. My brethren overrule the Ripley case, but they leave the others unimpaired. The writer wrote the opinion in the Ripley case. It was concurred in by Judge Ramsey. The Ripley case is but a reproduction of all the other cases decided in this State, and is in entire harmony with and based upon them. It would be useless to follow this further, my brethren having determined to overrule appellant's contention in this matter. I simply enter this as my dissent on the question.

There is another question I might notice. My brethren hold that Barker did not have appellant under arrest at the time he had the conversation with him, which was produced before the jury. I shall reproduce Barker's testimony in this connection: "When I called the defendant off there I asked him when was the last time he was in Weatherford, and he said he had not been in Weatherford since — I am not positive now whether the last day in March or the first Monday in March, but one or the other was the last time he had been here. Then I asked him if he had been here yesterday and he said no, he was not here since — either the last day of March or the first Monday in March." The bill further recites Barker's testimony as follows: "I just called him off there to talk with him. I had him in my custody or charge when I called him off to one side. If he had tried in any way to escape I would not have permitted it; would not have allowed him to escape. I had him in custody for the alleged charge for which he is on trial now." This conversation occurred the day following that on which the check was said to have been passed on the bank. It is a little difficult some times to determine when a party is or is not under arrest, but under my understanding of the law as applicable to the statement of facts made by Barker, it is shown that appellant was under arrest. The bill shows he was not warned, the statements were not in writing, and are, therefore, inadmissible. The statements of appellant made to Barker on this occasion were used against him as incriminating facts in view of the whole testimony, and to impress the jury with the fact in the light of the other testimony of the State, that he was in Weatherford that day and not in Fort Worth; that is, that appellant was telling a falsehood about his not being in Weatherford. Therefore, it was evidence of guilt and incriminating in its nature. This being true, under our authorities, it was in effect a confession as much so as any fact that is incriminating when stated by the defendant under circumstances as regarded in that light of authority in this State and this under all the cases as I understand them. The admission of this testimony was error. Nolen v. State, 9 Texas Crim. App., 419; Binkley v. State, 51 Tex.Crim. Rep.; and cases there cited; see also Patrick v. State, 74 S.W. Rep., 550. In the Patrick case it was said: "It is often a serious question of fact, as found in the records coming before this court, to ascertain at what point a prisoner making a statement may be considered under arrest. There are two rules which may be deduced from the authorities as being correct: First, if the party is under arrest, the confession should be excluded; and, second, if, by the acts and conduct of the officer, or those approaching or having the party in charge, he is led to believe he is under arrest, or in his own mind is conscious of being under restraint, then the confessions are inadmissible. If the officer is to be believed, then he states: "I had him in my custody or charge when I called him off to one side. If he had tried in any way to escape I would not have permitted it; would not have allowed him to escape. I had him in custody for the alleged charge for which he is on trial now."

There are other questions in the case that might be interesting to discuss which were detrimental to appellant, and in my judgment not legally in the case against him. Appellant may have been guilty of this matter; the jury thought so, and convicted him, but that ought not matter, if the questions presented to this court show such error as prevented a fair and legal trial, for in such case it is the duty of this court, as I understand the duties of appellate courts, to award him another trial that he may be tried under the rules of law. It is the only way I have been taught that a legal trial can be had or that legal justice can be attained. I do not believe appellant has had such a trial as is demanded by the law. He has invoked the rules of law, in my judgment, but in vain. I believe his contentions to be correct and right. I therefore cannot agree with my brethren. I think the judgment ought to be reversed and the cause remanded.