Dover v. State , 81 Tex. Crim. 545 ( 1917 )

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, or while he was in the custody of an officer, unless made in the voluntary statement of the 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 had 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 Herman's case, 42 Tex.Crim. Rep., 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, can not 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 criminative 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 can not be impeached as to such statements. Following Bailey v. State, 40 Tex.Crim. Rep.." Other cases in point are the following: Wright v. State, 36 Tex.Crim. Rep.; Williams v. State, 10 Texas Crim. App., 527; Parks v. State, 46 Tex. Crim. 104; Brown v. State, 55 Tex.Crim. Rep.; Adams v. State, 16 Texas Crim. App., 172; Wimberly v. State, 22 Texas Crim. App., 510; Rogers v. State, 44 Tex.Crim. Rep.; Binkley v. State, 51 Tex.Crim. Rep.; Nolan v. State, 9 Texas Crim. App., 419.