Stone v. State , 98 Tex. Crim. 364 ( 1924 )

Appellant's motion for rehearing and his brief in support thereof seems to proceed upon the idea that the effect of our original opinion is to hold that one accused of crime cannot in a proper case defend by showing that a party other than himself committed the offense. We did not intend to announce any such radical departure from a well established rule. Our opinion is only to re-assert that the proper way to prove another's commission of the offense under the facts of this case was not by introducing the hearsay statements of the said third party upon whom appellant sought to fasten guilt.

The original opinion sets out the State's evidence fully. In order to make clear the point under discussion we condense appellant's evidence.

He denied making to the officers every criminative statement testified to by them as shown in our original opinion. He testified that desiring to secure a loan on his farm he had moved to town in September; that Walton was a tenant and had been living in the house where the still was found for eight years and continued to live there during appellant's residence in town; that when appellant returned to the farm in November he found that Walton had installed a still in the house and was making whisky; that appellant made him move the still; that about February 1st appellant and his wife went to San Antonio where they remained for three weeks; that upon his return from this trip he found Walton had again put the still in the house and was operating it; that appellant became angry and beat Walton with a stick of wood, but upon the latter importuning him to permit the operation of the still until the material on hand was used up appellant tacitly consented. After testifying to the foregoing facts appellant tendered three witnesses one of whom would have sworn that Walton offered to sell witness whisky and said he was making it on appellant's premises, and later told witnesses that appellant beat him for again starting the still; another would have sworn that Walton on one occasion showed witness the still which was in operation and said it belonged to him, and the third would have testified that Walton on one occasion was intoxicated and told witness he was making whisky at his (Walton's) house. It was to the exclusion of these declarations by Walton that exception was reserved. The testimony rejected related to different times than the transaction testified to by the officers and was not resgestae.

It is contended that while our opinion may be in consonance with Greenwood v. State, 84 Tex.Crim. Rep., 208 S.W. 662; Walsh v. State, 85 Tex.Crim. Rep., 211 S.W. 241; Staton v. State, 93 Tex.Crim. Rep., 248 S.W. 356, that they are out of harmony with former opinions of this court. Recognizing that the admissibility of testimony of the character offered would depend largely upon the facts of each particular case we made this statement in our original opinion, —

"We would lay down no hard and fast rule in reference to such testimony, but its admissibility would depend upon the facts in each case."

On account of the importance of the question we think it advisable to review the cases upon which appellant relies in asserting that we were in error in our former opinion. When the facts of the DuBose case (10 Texas Ct. App. 230[10 Tex. Crim. 230][10 Tex. Crim. 230]), and the real point there under consideration is understood we do not believe our opinion to be at all out of line with the rule announced in that case. DuBose was charged with the murder of one Benton. Bacquet testified that DuBose had admitted to him the killing of Benton. The defendant offered evidence tending to connect Bacquet with the murder which evidence consisted of motive, threats and opportunity to kill deceased. There is nowhere any more definite statement of what the offered evidence was. When kept in mind that Bacquet was used as a witness by the State we think there can be no doubt as to the holding in the DuBose case. It is entirely different from the case now under consideration in that here Walton, whose hearsay statements were offered in evidence, was not used as a witness by the State at all, but was at the time of trial in the penitentiary under a conviction for murder. In this respect the case is similar to Walsh (supra). Walton was a convicted felon and could not have testified if present, but appellant offered a declaration made by Walton to a third party by tendering the third party to repeat the hearsay statement. See, also, Long v. State, 10 Texas Ct. App. 186[10 Tex. Crim. 186][10 Tex. Crim. 186]. In Blocker's case (55 Texas Crim. 30), the State relied on circumstantial evidence alone. Massey was a witness. He had married deceased's divorced wife. Deceased had become more or less attentive to his former wife and a separation occurred between her and Massey. It being shown that Massey had both opportunity and motive to kill deceased Massey's admission to a third party that he had done the killing was received in evidence. In Harrison v. State (47 Tex.Crim. Rep.) accused was on trial for killing Francis. One Whitten was used as a witness by the State and testified that he was present and saw accused kill Francis. Whitten's evidence exculpated himself. The court admitted evidence from other witnesses that Whitten confessed to them on the night of the homicide that he had killed Francis and exonerated Harrison from participation in it. However, the court limited the use of such testimony to determining Whitten's credibility and this was held error. The court says:

"The reason of the rule finds application in the doctrine that any legal testimony which will serve the purpose of fastening the homicide solely on Whitten and so exculpate appellant (Harrison) should be admitted on his behalf."

If the rule were otherwise, the court says in effect, that Harrison though not guilty might be convicted because he could not use Whitten's confession, and then the State could also secure Whitten's conviction on his own confession. Gilder's case (61 Tex.Crim. Rep.), is in nowise in conflict with our present holding. It was purely a case of circumstantial evidence. Gilder was charged with burglary, and the State was relying for a conviction on the fact that he was found in possession of some of the property stolen from the burglarized house. Smith was a State's witness. He was also found in possession of some of the stolen property, but claimed to have purchased it from Gilder. In this state of the record it was held that Gilder should have had an opportunity to prove that Smith confessed to having committed the burglary. In Pace v. State (61 Tex.Crim. Rep.) the defendant offered to prove by a witness that he heard one Cain admit that he had killed deceased. By reference to volume 58 Tex.Crim. Rep., p. 90, where the Pace case was reported on a former appeal, it will be found that Pace and Cain were both present when the killing occurred and some of the eyewitnesses testified that Cain did the shooting, and others that Pace did it. Cain had been tried and had subsequently died. What the result of his trial was does not appear from the opinion. It was held in this case that Cain's statement admitting that he had killed deceased should have been received. In Jackson v. State, 67 S.W. 497, the party whose statements were offered in evidence was a participant in the killing and was seen running away with a knife in his hand after the homicide. The Pace and Jackson cases are the only ones, we think, which are out of harmony with our opinion holding that the tendered evidence in the present case was inadmissible, and in so far as they appear to announce to the contrary they are to that extent overruled.

We again call attention to a statement by Mr. Wharton in his Criminal Evidence, Vol. 1, Sec. 250, page 476, which is quoted in Greenwood's case (supra).

"Allowing proof of innocence by the self-assumed blame of one beyond the reach of the law would soon disorganize criminal procedure. And to admit declarations as affirmative proof of the guilt of some one other than the declarant would be subversive of constitutional principles."

We think unquestionably the general rule is as stated in the note under the Blocker case (supra), as reported in 131 Am. St. Rep., at page 778, as follows:

"— that a confession or admission on the part of a third person that he committed the crime which the defendant is charged with having committed is mere hearsay, and not admissible in evidence in favor of the defendant where it does not constitute a part of the res gestae."

The Blocker case engrafted upon that rule in Texas the exception that where a defendant upon trial offered evidence tending to connect a third person with the commission of the offense by showing motive and opportunity on the part of the third person, and the State relied upon circumstantial evidence alone to prove the guilt of the defendant, that under such circumstances the confession or admission of guilt by such third person should be admitted. Blocker's case was annotated in the Am. St. Rep., Vol. 131, page 772, and the notes thereunder extend over ten pages, showing conclusively that the announcement in the Blocker case was regarded as an exception to the general rule. In addition to the quotation in our original opinion we further quote from the notes in 131 Am. St. Rep., 786, as follows:

"The general rule holding confessions and admissions on the part of third persons in respect to the crimes charged against defendant inadmissible in favor of the defendant on the ground of being hearsay has not been repudiated by any court before which the question has been raised. It has uniformly been followed in Texas also: Bowen v. State, 3 Texas App., 617; Holt v. State, 9 Texas App., 571; Horton v. State (Texas Crim. App.), 24 S.W. 28; Hodge v. State, (Texas Crim. App.), 64 S.W. 242. Hence the rule announced in the principal case (Blocker v. State, 55 Tex. 30, ante, p. 772, 114 S.W. 814), to the effect that where the evidence is wholly circumstantial, and there is evidence that a third person had a motive as strong as defendant to commit the crime, and was in a position to have done so, evidence that such third person had declared that he had committed it is admissible, must be deemed as having been intended as an exception to the general rule. We have not been able to discover any other cases in which such declarations have been admitted in evidence under similar circumstances. The evidence is without doubt mere hearsay, and its admissibility must be justified as being necessary under the exceptional circumstances existing in the case before the court. This new rule, if restricted to cases in which the incriminating evidence is wholly circumstantial and equally strong against the defendant and the third person making the declarations of guilt, would seem to be sound, since the person making the confession would be in as great danger of conviction for the crime as the person on trial."

We have reviewed the question at some length because of its importance and because of the earnestness with which counsel representing appellant presents his views that we were wrong in the conclusion heretofore announced. Our further investigation confirms us in the belief that in the rule announced we are in accord with the generally accepted holdings by the courts of other states as may be ascertained by an examination of the notes under the Blocker case. If there is any case in our own State save those of Pace and Jackson (supra), which are apparently inharmonious when the tracts of the case are fairly understood our attention has not been called to it. Finally, as presenting what we conceive to be the proper announcement relative to the matter, we quote from Walsh's case (supra) as follows:

"It is settled that one accused of crime may show that another person committed the offense with which he is charged, where the guilt of such other person would be consistent with the innocence of the accused. But this proof must be by competent evidence. DuBose v. State, 10 Texas Crim. App., 230. In the case of Blocker v. State, 55 Tex.Crim. Rep., this court qualified the general rule excluding the admission of the third party as hearsay, and holding that in a case where the prosecution was supported by circumstantial evidence alone that in connection with circumstances tending to show that another and not the accused had motive and opportunity to commit the offense, the declaration of such third person that he had committed it should be received as one of the circumstances in favor of the accused on trial."

In the case now under consideration the State did not rely upon circumstantial evidence alone to establish appellant's guilt. We, are confirmed in our view that the hearsay statements of Walton, which were not res gestae were inadmissible for the reasons heretofore discussed.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.