Owens v. State , 1884 Tex. Crim. App. LEXIS 136 ( 1884 )

Hurt, Judge.

At the spring term of the district court of Houston, county appellant was tried- and convicted for the murder of Mattie Murchison; the jury finding him guilty of murder of the. second degree, and assessing his punishment at fifteen years confinement in the penitentiary.

Prom this conviction he. appeals to this court, and assigns numerous errors for a reversal of the judgment. We deem it necessary to- notice and consider but two of the errors assigned. 1. That which relates-to admissions of statements made by the defendant, he- claiming that he made them while under arrest. 2. The sufficiency of the evidence to support the verdict.

To. the-first error assigned: It appears from the record that A. W. Ellis was deputy sheriff. Relating to the arrest of defendant, he says: “We had defendant- arrested, and about daybreak Sunday morning we turned him over to his father, George Owens, and he was to deliver him to us at. Martin Van Buren’s by the time we reached there, which he did- about a half hour of sun.” How, while the. defendant was in the custody of his father, before he was turned over to the deputy sheriff, Ellis, the witness Dick Stanton swears that “defendant, Wes. Owens and myself went behind the house, and defendant told me that if I was with the officers and others tracked him, and I. saw his handkerchief near by a hole of water, to get it and put it in my pocket and say nothing about it. Defendant said to Wes. Owens to- get that knife and clean it.” These statements were introduced in evidence by the State over the objections of defendant, the objection being that when made he was under arrest.

This objection, it. is insisted, is. met by the State with these matters: 1-. That defendant was not under arrest. 2. If he was, that the handkerchief was found in. pursuance of the confession, and that therefore this, matter was admissible under that part of Article 750, Code of Criminal Procedure, which provides that the- confession may be used “when,in connection with such confession, he makes statement of facts or of circumstances that, are found to be true, which conduce to establish his guilt,” etc.

• We are of the opinion that defendant was in confinement, and that to authorize his confessions to be used against him, he must have been cautioned that they could be used against him. This, it is conceded, was not done.

Did he make statement of fact or facts, or circumstances which conduced to establish his guilt? Let us concede that the handkerchief was found just where defendant said it could be found, did this fact conduce to establish his guilt? We think not under the circumstances relating to the handkerchief. Defendant had given minutely the route traveled by him after he left the two men with whom (he says) he left the deceased, Mattie Murchison. How, then, the fact that on this route his handkerchief was found where he said it could be found conduce to establish his guilt, we can not conceive. There was no blood on the handkerchief; at least the testimony fails to show that there was. That it was stained may be true, but certainly the evidence should show the character of this stain. Was it red, green or blue? Or what was its color? We cannot presume that it was stained with blood, nor can we presume that any fact conduces to establish guilt; this must be proven, and clearly proven in order to be made the basis for the introduction of other confessed facts which tend to criminate the defendant.

There being no fact found to be true which conduces to establish defendant’s guilt, these statements or confessions were not admissible.

But it may be urged by the State that this statement, or confession, was harmless, as much so as the horse tracks found on his route in pursuance of his history of this matter. If his confession simply stopped with merely finding the handkerchief where he said it could be found, this would be so, but this is not the case. He desired Stanton to pocket the handkerchief and say nothing about it. In this we find very strong evidence of guilt—a desire to conceal that which he believed evidence of his guilt. And while it may be true that there was nothing in the fact that the handkerchief was left at the pool of water on his route conducing to establish his guilt, still defendant believed there was, and was solicitous that this evidence of his guilt (as he supposed) be concealed..

In addition to that which relates to the handkerchief, the State proved by Stanton that while defendant was in confinement, he requested his brother “ to get that knife and clean it.” Viewed in the light of the fact that deceased was killed with a knife, the request of defendant of his brother was evidence of a very strong and conclusive nature indeed. Its effect was equal almost to a direct confession of guilt. Mattie Murchison had j been brutally murdered. Her murderer—the guilty demon—bad cut her throat. Defendant was suspected of this most foul deed. Thus circumstanced, he says to his brother, “ get that knife and clean it.”. As above said, the effect of this request was a terrible confession, and was, without any sort of doubt, calculated to, and indeed did, have very great weight with the jury. The knife was not found, nor attempted to be found, with or without blood on it, in pursuance of this statement or request, and hence 1 its introduction in evidence was clearly erroneous.

We are not to be understood to be holding that it was necessary to find a bloody knife in pursuance of the statement, in order to the admissibility of this matter in evidence. For this court this term decided (Weller v. The State, ante, p. 200) that J where, in connection with the confession, a fact is confessed and found to be true, and such fact conduces to establish guilt, the main fact as well as all other facts are admissible, whether found to be true or not. The fatal objection to the admission of the statements of the defendant in this case consists in the fact that no fact confessed by him was found to be true which conduces to establish his guilt. That is, the fact found to be true was under the circumstances of this case not inculpatory. This be- ' ing the case, he not first being cautioned, and being in confinement or under arrest, his statements, or confessions, are not evi- j dence against him. I

Does the evidence support the verdict? As we do not desire to prejudice the rights of the defendant we will not discuss the evi- J dence, but must say that, were there no other reason for reversing this judgment, we could not do so for the reason that ,1 the verdict is not supported by the evidence. The objection to the charge of the court, reference being had to the facts in this case, is not well taken. j

For the error of the court relating to the admission in evidence of the confessions of the defendant, the judgment is reversed and the cause remanded. j

Reversed and remanded,

Opinion delivered June 18, 1884.