Pinckard v. State , 138 S.W. 601 ( 1911 )

HARPER, J.

In this case appellant was indicted, charged with the offense of arson. Upon a trial he was convicted in the district court of Polk county, Tex., and his punishment assessed at five years confinement in the penitentiary.

1. It appears from the record in this case that Tom Pinckard turned what is termed “state’s evidence,” and testified, in effect, that he and defendant burned the house in question. The wife of Tom Pinckard was used as a witness by the state, and the defendant complains, first, that the court refused to give a special charge requested instructing them that Mrs. Pinckard was an accomplice, and her testimony should not be considered as corroborative of that of Tom Pinckard, the admitted accomplice; second, it was complained that defendant offered to prove, and could have proved, by said witness, that her husband, Tom Pinckard, had brought home a pitcher and some other articles alleged to have been stolen by her husband.

[1] As to whether or not Mrs. Pinckard was an accomplice after the fact, or rather an accessory, by reason of the fact that sbe testified on the trial of tbis case that defendant on tbe day tbe bouse was burned bad called her to the door and pointed out tbe burning building, and told her that be bad burned tbe building alleged to bare been burned in tbe indictment, and admitted that, when her 'husband and defendant bad been arrested charged with tbe offense shortly after tbe bouse was burned, sbe denied any knowledge of tbe circumstances, is tbe question to be decided. Both tbe defendant and the husband of tbe witness were under arrest and in jail at tbe time sbe admits sbe told Andy Franklin and "others that sbe did not know anything about it. Does tbe. fact that a witness denies knowledge of a crime to persons inquiring who are not officials make such person an accessory? We do not think so. In tbe ease of Chenault v. State, 46 Tex. Cr. R. 354, 81 S. W. 972, tbis court says: “Article 86, Penal Code, provides : ‘An accessory is one who, knowing that an offense has been committed, conceals tbe offender, or gives him any other aid in order that be may evade an arrest or trial, or tbe executions of bis sentence.’ Tbe proffered evidence, as disclosed by tbe two bills above, is insisted by appellant as being •pertinent evidence in this case, upon tbe theory that the same would' prove that tbe witnesses were accessories to tbe forger. We bold that said testimony is not admissible for tbis purpose. No one in this state can be an accessory after tbe fact, such as disqualifies him as a witness, unless be comes within tbe letter and spirit of the article above quoted; that is, be must give some aid and assistance to the principal before be can be guilty. In other words,' be must conceal tbe offender or give him some other aid in order that be may evade an arrest or trial. Tbe aid- here contemplated is such as furnishing him with a horse to flee upon, or giving him a gun with tbe view of resisting arrest for tbe offense, or some other overt active assistance. Tbe evidence going to disqualify a witness must be of sufficient force to convict him of accessory to tbe crime before such witness would be an accessory. In Schackey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877, quoting from Mr. Bishop, we said: ‘That the test of an accessory after the fact is that be renders bis principal some personal help to elude punishment; tbe kind of help being unimportant. Keeping a witness by persuasion or intimidation from appearing against a felon on bis trial does not render one the felon’s accessory, though it is punishable as a misdemeanor.’ And further: ‘That we learn from tbe elucidation of tbe first volume (of tbe same author) that an accessory after tbe fact in felony is one who in any way aids tbe principal offender, whom be knows to be guilty of the felony to elude punishment.’ ‘One is not an accessory who merely neglects to make known to tbe officers that a felony has been committed, or who forbears to arrest tbe felon or agrees not to prosecute him. Keeping a witness by persuasion or intimidation from appearing against a felon on bis trial does not render one the felon’s accessory. 1 Bishop, Crim. Law, § 694. Nor does tbe fact that one agrees for money not to give evidence against a felon or knows of tbe felony and does not disclose it make tbe party an accessory after the fact. There must be some independent criminality to make one an accessory.’ ” See, also, Prewett v. State, 41 Tex. Cr. R. 262, 53 S. W. 880; Elizando v. State, 31 Tex. Cr. R. 243, 20 S. W. 560, and cases cited.

[2-4] Upon tbe second proposition, that tbe wife should have been permitted or required to testify to facts «that would show her bus-band, Tom Pinckard, guilty of another and different offense, involving moral turpitude, we do not think tbe court erred in excluding or failing to permit said testimony to be adduced from the wife. In tbe first place, Tom Pinckard, while on tbe witness stand, bad denied such facts, and refused to testify in regard thereto on tbe ground that it might tend to criminate him in another and different offense. Tbis testimony was adduced by defendant for the purpose of impeachment, and defendant was bound by tbe answer of tbe witness. It does not appear from tbe record that Tom Pinckard bad ever been indicted or charged with such an offense, except that such appears from the questions propounded by defendant, and tbe witness Pinckard nor bis wife could not be compelled to furnish evidence upon which an independent criminal prosecution might be based. Brittain v. State, 36 Tex. Cr. R. 410, 37 S. W. 758.

[5] New matter not covered by the examination in chief, which may be used against her husband, cannot be elicited from tbe wife on cross-examination. Creamer v. State, 34 Tex. 173; Greenwood v. State, 35 Tex. 587; Washington v. State, 17 Tex. App. 197; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385.

[6] 2. Tbe defendant also complains of tbe admissibility of an alleged confession of defendant. At request of defendant, tbe original paper is sent up for our inspection. It reads: “Tbe State of Texas, County of Polk. Tbe following is tbe voluntary statement of O. D. Pinckard made to me, M. S. Tew, on tbis tbe 21st day of May, A. D. 1909, after having first been duly warned by me, M. S. Tew, that be did not have to make any statement at all, and that any statement made may be used in evidence against him on his trial for tbe offense concerning which tbe confession is therein made: ‘Me and Tom Pinkard went a cow bunting and come by Niekolas house and be said lets bum Nicholas bouse now is a good time we wouldn’t be caught up with, be brought tbe wood in and I set fire to it. and he sat down there to see that I fired .it. [Signed] 6. D. Pinckard.’ Witnessed by M. S. Tew. E. H. Garvey.” Under all the decisions of this court, such statement was admissible in evidence, as the warning, etc., complied fully with the statute on that question. Jenkins v. State, 131 S. W. 543, and authorities there cited. All the requisites held essential by a majority of the court in that case are complied with in this confession.

[7] Defendant insists that the question of whether' or not it was voluntarily made should have been submitted to the jury, and asked several special charges in regard to this matter, which were refused. If the issue of whether voluntarily made or not was fairly raised by the evidence, then it was a •question for the jury to determine. The only evidence in the record on this point was from the witness Garvey, introduced by defendant. Garvey testified that he went to defendant on two or three occasions and sought to induce him to tell him what he knew about the matter. The witness says he went so far as to tell this defendant that Tom had told all about it. Defendant on these occasions denied all knowledge of the burning of the house, but at a later date, while he was giving defendant his dinner, he voluntarily told witness (Garvey) about the matter. That he (Garvey) then went to the justice of the peace, Mr. Tew, and told him what defendant had said, and Mr. Tew went to the jail and defendant voluntarily made and signed the statement to Mr. Tew introduced in evidence. This was all the evidence in regard to the matter. No hope was held out to defendant, no threat nor any inducement offered, and the record being in this condition, the witness being offered by defendant, we cannot say that the court erred in not giving the special instructions requested. In the case of Zwicker v. State, 27 Tex. App. 539, 11 S. W. 633, it is held that, where there is no evidence raising the issue- of whether voluntarily made or not, there was no error in refusing a special instruction submitting that issue.

[8] 3. However, we desire to say in this connection there is a matter suggested by the record that we do not approve. It appears that, as soon as defendant was placed in jail, he requested that the attorneys now representing him be sent for, that he desired to talk with them about his ease, and they were not sent for until after he had made the confession introduced in evidence. If the evidence eliminating this confession did not show appellant’s guilt beyond a reasonable doubt, and in the record there was any evidence refuting the state’s case, we would feel inclined to' reverse this case because of such conduct. A defendant in jail is entitled to confer with his attorney when he requests permission to do so, and an officer having him in charge, instead of seeking to elicit a confession, after a request had been made to confer with attorneys, if a defendant really made a confession before his attorney was sent for, it' ought to appear that an effort had been made to get word to the attorney, and that a defendant knew the attorney of his selection would come to see him or had refused to do so; Advantage of no kind or character ought ever to be taken of a prisoner in jail charged with crime, even to obtain the conviction of the giulty, but each and every one should be granted all the rights and privileges guaranteed to them under the law, and, if the question of defendant’s guilt or innocence was dependent upon the confession thus obtained, we would be loathe to let the conviction stand. But, as hereinbefore stated, inasmuch as the testimony, in addition to the confession, shows that defendant set fire to the house in question, and there is no testimony in the record tending to refute this evidence or show that defendant was not present participating in the offense, and he received the lowest penalty, we will not reverse the case, but here express our disapproval of such practice. .

[9] 4. Appellant also complains that the evidence did not show the house'burned to be the property of the party alleged (C. W. Nickles), and, while the motion for a new trial was being heard, introduced in evidence a deed to the property from T. W. Acre to Mrs. Mattie Nickles, the wife of O. W. Nickles. O. W. Nickles was placed on the stand, and testified: “When I came here, I bought this piece of land from Acre and his wife, and -had the deed made in her name. I paid for it out of the earnings I earned after I married her.” There was no other evidence offered as to the ownership of the house, and this would make it the community property of defendant and his wife. Under our laws all property acquired by either husband oy wife during the marriage (except that which is acquired by gift, devise or descent) is deemed their community property, and during the marriage relation may be disposed of only by the husband. See articles 2968, 2969, Rev. Civ. Stat. 1897. The building was properly alleged to be the house of C. W. Nickles, as in arson a person in control of a building may be alleged as the owner or occupant of the building. See Allen v. State, decided at the present term of this court, and authorities there cited.

5. The only other question in the case which is raised in a number of assignments is, Did the evidence show the house burned to be the property of the party alleged? Tom Pinckard and wife, W. M. Moye, Willie Dickens, and A. J. Franklin all speak of it as the property of G. W. Nickles, and in the evidence there was no issue raised as to this being the property of any person other than Nickles, and under all the testimony, especially if we take into consideration the confession of defendant, there can be no question that the house burned was thq house of C. W. Nickles.

The judgment is affirmed. '