Barnes v. State , 36 Tex. 356 ( 1872 )

Ogden, J.

The only question presented by the record of this case, which is considered material in determining the merits of this appeal, is in relation to the admission hy the court to the jury of the confessions of the defendant, made under the circumstances as disclosed by the statement of facts and the bill of exceptions.

It appears from the evidence, that soon after the murder of Philpot, a man who had signified a desire to make a statement in regard to that murder, was taken to the private office of the Mayor of the City of Austin, and Mayor Glenn testifies that the statement was then made, and reduced to writing. The testimony of the mayor, as presented in the record, does not show positively who that man was, but, from his further statement, it may be presumed that it was the defendant Barnes, as he testifies that he then cautioned the defendant, in pursuance of the statute, that any confessions he might make could be used in evidence against him on any subsequent trial. That he subsequently cautioned him in the same manner at the time of his prelimiary examination. The defendant was committed by the mayor, to await a trial for the murder of Philpot.

But it is somewhat remarkable, that on the trial in the District Court, that statement or confession made by the defendant, and reduced to writing before the mayor, was not offered in evidence, nor the absence of the written statement properly accounted for, and the contents proven. But it does appear from the testimony of Hartson, one of the deputy sheriffs, that about two days subsequent to the commitment by the mayor, he, in company with several other persons, all disguised, took the defendant out of jail one. night, put a rope around his neck, and endeavored to force a statement from him, but no confession was extracted from the defendant at that time.

It further appears from the testimony of Gaddell and Iiartson, that about a month after defendant’s arrest, he was again taken from the jail into one of the lower rooms of the courthouse, by the same, or at least some of the same persons who had previously attempted to force a confession from him, and while there in the custody of the officers, he did make a confession of the murder of Philpot;. and upon the proof of this and subsequent confessions made to the same parties, he was convicted of murder in the first degree, and has. appealed to this court for a correction of the alleged errors in the judgment of the lower court.

The legal proposition that confessions made while under an arrest, induced by promises or threats, cannot be used in evidence against a party making them, -has been too long and definitely settled to now require argument or citation of authority to sustain it. It is also quite well settled, as a presumption, of law, that the influence of threats or promises once made continue to operate until rebutted by proof clearly showing that it had ceased to operate. (Peter v. The State, 4 Smedes & Marshall, 31; Van Buren v. The State, 24 Miss., 513; The State v. Guild, 5 Halstead, 163; The State v. Field & Webber, 4 Tenn., 140.)

In the case at bar, the defendant, after having been once threatened with death by hanging, by parties in disguise, and again taken from the jail by the same parties, evidently for the purpose of again repeating the threat, possibly in a more effectual manner, and without any assurance or caution, was induced to make the confession proven on the trial. Bnder such circumstances, though one of the witnesses testified that the confession was voluntarily made, yet without any proof why the defendant was so taken from the jail, or what was doné or said to him. to induce the confession, it would -he exceeding hard to convince a reasonable mind that the influence of the former threat had wholly ceased.

Again, in the cases of Peter v. The State, and in Van Buren v. The State, above cited, the courts lay down the very reasonable rule that where violence, or threats, or promises, have been used to induce a confession, there must be very clear and strong evidence of a subsequent explicit caution or warning, sufficient to free the mind of any influence of hope or fear, and to clearly establish the fact that any subsequent confession was entirely voluntary, before the same is admissible in evidence. There is no proof that the appellant in this case received any caution after the threatening demonstrations with the rope, or after the caution given by the mayor a month before the confession was made. But there is positive proof that at the time of the confession no caution was given, and from the characters of the parties to whom the confession was made, as appears from the record, and the part they had taken in order to force a confession, it is quite evident that proof is true.

Our statute, Article 3127, Paschal’s Digest, is quite clear and positive on the subject of the admission of the confession of an accused as evidence against him; and we think the clear purport and intent of the statute is that the confession of a defendant shall not be used in evidence against him, unless it be made to appear that at the time the confession was made, it was voluntarily made, after having been cautioned that it might be used against him; that the caution must immediately precede the confession, and also that after the caution the confession was voluntary. We think the spirit and intent of our statute, as well as the almost uniform tenor of decisions upon similar laws, were not observed on the trial of this case, and that the court erred in overruling the motion for a new trial.

The judgment is therefore reversed, and the cause remanded,

Reversed and remanded.