Rice v. State , 22 Tex. Ct. App. 654 ( 1887 )

Willson, Judge.

This conviction is for the theft of a horse, the property of one Mansker. Before indictment found the defendant had been arrested under warrant of a magistrate issued upon a complaint charging defendant with said theft, and, upon examination of said charge before said magistrate, the complaint was read to the defendant by the magistrate and the defendant pleaded guilty thereto. Upon the trial of this case upon the indictment the State was permitted, over the objections of the defendant, to prove said plea of guilty made before said magistrate. This ruling of the court is insisted upon as error.

It was proved that before said plea was made the magistrate cautioned the defendant that what he might say would be used in evidence against him. It was also proved that, just prior to said caution and plea, Mansker, the owner of the horse, had advised the defendant “ to plead guilty to the theft of the horse, that it would go better with him.” Defendant’s plea of guilty was not made as a voluntary statement under Article 262 of the Code of Criminal Procedure. It was not reduced to writing and signed by the defendant, but was merely an oral statement that he was guilty of the charge contained in the complaint. It was, therefore, an extra judicial, not a judicial confession. To have constituted it a, judicial confession it must have been made in a voluntary statement of the accused taken before a magistrate in accordance with law. But, notwithstanding it is to be regarded as an extra judicial confession, it was admissible in evidence if voluntarily made, after having been first cautioned that it might be used against him. (Code Crim. Proc., Art. 750.) It is made clear by the evidence that before making the plea the defendant was properly and sufficiently cautioned that it might be used against him.

The only serious question is, was the plea a voluntary confession? It is contended by defendant’s counsel that it was not, because the defendant was induced to make said plea by the advice of Mansker, the owner of the horse, that “it would go better with him” to so plead. Under the earlier decisions upon this subject, the objection to the confession would perhaps be well taken, but the almost universally recognized doctrine now is that, to render a confession inadmissible upon the ground that it was induced by the promise of some benefit to the accused, such promise must be positive, and must be made or sanctioned by a person in authority. It must also be of such character as would be likely to influence the accused to speak untruthfully. (Whart. Cr. Ev., Sec. 651, et seq.; Thompson v. The State, 19 Texas Ct. App., 595.) The confession in this case is not within the rule stated, and was, we think, a voluntary confession within the meaning of the statute, made after the defendant had been duly cautioned that it might be used against him, and it was not error to permit said confession to be proved.

Opinion delivered January 12, 1887.

It was not error to permit the State to read in evidence the complaint to which the defendant had pleaded guilty before the magistrate. This was pertinent and competent evidence to show the particular charge to which the defendant had pleaded guilty, and to identify the offense to which the confession of guilt related, with the offense for which the defendant was on trial.

We will not revise the action of the court in refusing the defendant’s application for a continuance, because, in our opinion, the evidence adduced on the trial does not show that the facts set forth in said application as to the testimony of the absent witnesses were probably true. (Code Crim. Proc., Art 560, sub. div. 6.)

We have found no error in the conviction, and the judgment is affirmed.

Affirmed.