Goss v. State , 83 Tex. Crim. 349 ( 1918 )

Appellant draws our attention to the fact that we were mistaken in our conclusion that his bills of exception related to the motion for new trial only.

Bill No. 4 complains of admission of the testimony of the witness Bray, who testified that appellant told him that he had sold the beer to the prosecuting witness, Roach; that appellant voluntarily made this statement and further told the witness that he would plead guilty if he, the witness, would aid him in getting a suspended sentence. The witness was at the time a member of the grand jury, but the conversation took place on the street. The witness did afterwards see the county attorney, who declined to agree to a suspended sentence. The point made against this testimony is that it was inadmissible as a proposition to compromise. The court overruled the objection. Appellant was not under arrest or before the grand jury, and according to the testimony voluntarily made the statement that he had sold the beer and requested the witness to assist him in getting immunity. On the subject we take from Mr. Branch's Ann. P.C., p. 41: "To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority, and it must also be of such character as would be likely to influence the defendant to speak untruthfully. Thompson v. State, 19 Texas Crim. App., 593; Rice v. State, 22 Texas Crim. App., 654; Carr v. State, 24 Texas Crim. App., 562; Neeley v. State, 27 Texas Crim. App., 324; Cannada v. State, 29 Texas Crim. App., 537; Thomas v. State, 35 Tex.Crim. Rep.; Carlisle v. State, 37 Tex.Crim. Rep.; Anderson v. State, 54 S.W. Rep., 581; Williams v. State, 65 S.W. Rep., 1059; Brown v. State,45 Tex. Crim. 139." Under this rule the evidence was not to be excluded as an involuntary confession. Neither was it inhibited on the theory suggested by appellant that it was a compromise proposition. From the witness' testimony it appears that the statement that he sold the intoxicating liquor was unqualified. His proposition to plead guilty, however, was conditioned. The statement of fact was apparently independent of the overtures made by appellant. On this subject see Cyc., vol. 16, p. 950.

Another bill complains of the introduction in evidence of testimony relating to the receipt of shipments of intoxicating liquor through the express. The same question presented by this assignment has been determined against appellant's view several times. See Cowley v. State, 72 Tex.Crim. Rep.; Clark v. State, 61 Tex.Crim. Rep.; Byrd v. State, 69 Tex. Crim. 35, 151 S.W. Rep., 1068; Leonard v. State, 68 Tex. Crim. 549, 152 S.W. Rep., 632; Creed v. State, 69 Tex. Crim. 464, 155 S.W. Rep., 240; Brown v. State, 72 Tex. Crim. 33; Miller v. State, 72 Tex.Crim. Rep.; Robinson v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 245.

The other questions raised relating to the credibility of the witnesses have been passed upon by the jury.

The motion for rehearing is overruled.

Overruled.