Otts v. State , 135 Tex. Crim. 28 ( 1938 )

The offense charged is the theft of one head of cattle, and punishment fixed at confinement in the penitentiary for two years.

This is a case of circumstantial evidence, and the court so charged the jury.

Mr. Donnell lost a certain animal, and its hide and head were found hidden under a bridge in Stephens County. The connection of appellant with the theft of said animal was mainly predicated on the fact that the appellant and his brother, Amos Otts, stored with Mr. McElroy at his ice house, in Amos Otts' name, a hind quarter of a beef. There were some pieces of flesh cut out of this quarter and left on the hide, and when the hide was fitted to the meat there appeared pieces of meat that fit the depressions on the hind quarter.

These circumstances were the only proof that served to connect the appellant with this theft, save and except his confession, if such confession does thus connect him. The confession is, in substance, that appellant and his brother were out on a certain road on the night before this meat was stored by them, and they purchased such quarter of beef from a man whose name was unknown to them, and paid him therefor the sum of $4.00, and took such beef to the ice house and had it stored there. This statement was introduced by the State, and, of course, if the same were true, then the appellant could not have been guilty of stealing the animal from which this hind quarter of beef was taken. The identification of this quarter of beef was very material, and if such came from the stolen animal, and its possession in appellant remained unexplained, it would have been a strong circumstance going to show that he was the original taker of the animal. But the State comes in and introduces the signed statement of appellant showing that he had in good faith purchased this meat from another, thus exculpating himself. Under these circumstances appellant requested the court to charge the jury as follows: "You are further instructed that when the admissions or the confessions of a party are introduced in evidence by the State, then the whole of the admissions or confessions are to be taken together and the State is bound by them unless they are shown to be untrue by the evidence; such admissions or confessions are to be taken into consideration by the jury as evidence in connection with other facts and circumstances of the case."

If the State introduces a statement of the appellant which contains exculpatory matters, it has the right to, and should prove the falsity of such exculpatory statements. In the case of Baggett v. State, 144 S.W. 1137, Judge DAVIDSON said:

"Another phase of this question will be noticed, inasmuch as the State relied upon it. This statement is exculpatory in so far as connecting the defendant with the transaction as a principal. It shows on its face that O. D. Cowan and Richard Baggett said they killed the hog and brought it to appellant's house after the killing, excluding his presence at the time and place of the killing. This statement was exculpatory of theft, and only shows a receiving of stolen pork. This required a charge at the hands of the court, under a long line of decisions in this State, to the effect that the State, having put this in evidence, would be required to show it false in order to secure a conviction. This has been the rule in Texas, at least since the Pharr Case, in 7 Texas App. 472. We have been called on to write quite a number of opinions on this question, all of them in harmony with and following the rule laid down in the Pharr Case. See Combs v. State, 52 Tex. Crim. 617,108 S.W. 649; Pratt v. State, 50 Tex. Crim. 227,96 S.W. 8; Jones v. State, 29 Texas App. 21, 13 S.W. 990, 25 Am. St. Rep. 715."

In the Jones Case, 13 S.W. 990, this Court said: "We are of the opinion however, that in all cases where admissions and confessions of a defendant are admitted in evidence against him, and such admissions or confessions contain exculpatory or mitigating statements, it would be proper and just to the defendant to instruct the jury as was requested in this case", that is, that the State is bound by the whole of the statement unless the exculpatory portion thereof is shown to be untrue by the evidence. The above case cites Pharr v. State, 7 Texas App. 478, as the leading case. To the same effect is the opinion by Judge MORROW in the Forrester Case, 248 S.W. 40. It is also noted that appellant did not take the stand in his own behalf. It is not true that in every instance of the introduction of a statement of the defendant containing exculpatory statements that the State is bound thereby, but where such a statement is used to fasten guilt upon one accused of crime, the exculpatory statement must be disbelieved by the jury, and some such instruction should be given them in their deliberations. That such was asked in this cause, the above request shows, and the same complaint is found in the objections to the court's charge. Such request was refused by the trial judge. For the failure to give such charge, or one of like import, this judgment is reversed and the cause remanded.

ON MOTION FOR REHEARING.