Neeley v. State , 27 Tex. Ct. App. 324 ( 1889 )

Willson, Judge.

This conviction is for the theft of cattle, and is based upon a confession made by the defendant, admitted in evidence against him'over his objections. With respect to said confession the facts are, substantially, that the defendant and others were under accusation for the theft of said cattle. Defendant’s uncle, McDaniel, made repeated proposals to the district attorney that the defendant would testify as a witness in behalf of the State against said other parties accused of said theft, and testify also as to other thefts committed by said parties, upon condition that the defendant would not be prosecuted for said crimes.

In response to these proposals the district attorney had a conference with the defendant in which it was agreed that the defendant would testify in behalf of the State, and would testify to material facts against said parties as to said thefts, such facts as could be corroborated by other testimony, and that in consideration of his so testifying he would be exempted from prosecution for said theft; but that, should he violate said agreement and refuse to so testify, he would be liable to prosecution for said thefts. He thereupon made the confession introduced in evidence against him, and thereafter refused to fulfill his agreement with the district attorney to testify against said parties, and the district attorney caused him to be indicted for the theft to which his confession related. At the time he made said confession he was not in jail or other place of confinement, or in custody of an officer.

Having violated his agreement to testify in behalf of the State, the defendant was not entitled to exemption from prosecution by virtue of said agreement. It is well settled that where a pari'¡ceps criminis, for the purpose of securing exemption from prosecution, agrees to testify in behalf of the State against his accomplices in crime, and violates such agreement by refusing to testify in good faith, fairly and fully to facts within his knowledge, he can not claim the benefit of such agreement and may be prosecuted and convicted regardless thereof. (1 Bish. Crim. Proc., sec. 1164; 1 Greenl. on Ev., sec. 379; Roscoe’s Crim. Ev., secs. 132, 133; Whart. Cr. Ev., secs. 443, 656; Holmes v. The State, 20 Texas Ct. App., 517.) And the common law authorities above cited further lay it down that in,such case the confession made by the defendant under such agreement may be used in evidence against him. (See also Com. v. Knapp, 10 Pick., 477, which holds the same doctrine.)

But this court has held, and we.think correctly, that even in such case the confession is not admissible, unless it was voluntarily and freely made, uninfluenced by persuasion or compulsion, not induced by any promise creating hope of benefit, or any threats creating fear of punishment. A promise such as will render confession inadmissible must be positive, and made or sanctioned by a person in authority, and must be of such character as would be likely to influence the party to speak untruthfully. And a confession induced by the mere fear of legal punishment is not thereby rendered inadmissible. (Willson’s Crim. Stat., sec. 2472.)

In this case, it is evident that the confession was induced by the hope'of thereby securing immunity from prosecution and punishment for the theft of which defendant was accused. It was made upon the positive promise of the district attorney that, if the defendant would testify to the matters stated in the confession, he would not be prosecuted. Defendant’s subsequent bad faith in refusing to so testify could not per se render said confession admissible evidence against him. It was not a voluntary confession within the meaning of the law, and, not being voluntary, was inadmissible upon the ground that he had violated his agreement to testify. (Womack v. The State, 16 Texas Ct. App., 178.)

The learned trial judge did not admit the confession in evidence upon the ground that it was a voluntary confession, such as was admissible under common law rules of evidence, and in this view we think he was correct. He admitted it under article 750 of the Code of Criminal Procedure, upon the ground that statements were therein made of facts and circumstances which were found to be true, which conduced to establish the guilt of the defendant, of the theftj and he instructed the jury that, if the confession had not been so verified, they should disregard it.

We are of the opinion that, although the confession was inadmissible at common law because not voluntary, and although not such a confession as is named in article 750, Code of Criminal Procedure, that is, one made by a person in jail or other place of confinement, or in custody of an officer, yet, if it was verified by other evidence as provided in said article, it would thereby be rendered admissible.

Opinion delivered March 9, 1889.

But there is no such verification of the confession in this case. No fact or circumstance was discovered by means of defendant’s statement, which conduced to establish his guilt of the theft. The corroborating evidence was as to immaterial matters, not inculpatory of the defendant, and not matters found to be true by means of information afforded by defendant’s statements. (Willson’s Crim. Stat., sec. 2473.)

Such being the case, we are of the opinion that the court erred in admitting said confession in evidence, and for this error the judgment is reversed and the cause is remanded.

Reversed and remanded„