Donohoe v. State , 115 Tex. Crim. 17 ( 1929 )

The State's motion for rehearing in this case has led to an extended review of the points raised, and the entire record. We may have misconstrued paragraph five of the court's charge in writing in our former opinion concerning same, but the point is of no moment.

We are asked to consider a question and answer transcript of parts of the testimony of appellant and certain State witnesses, in aid of the State's contention in this motion that what was treated by us in the original opinion as a confession, was not such in fact. In solving questions arising from transcripts and statements of fact regularly certified and filed as part of the record on appeal, we are not allowed to consider matters brought to our attention dehors such record, which in any way attempt to add to or take from the record as so made.

On the issue as to whether the statements of appellant were confessions, appellant as a witness in his own behalf swore that deceased, about one o'clock at night, got out of appellant's car at a point near a creek some eight or nine miles from the town of Hilltop and walked away, and that he had not seen deceased since said time. Appellant denied making statements to the effect that he had said in the presence of Messrs. Campbell and Rheay when in jail that he put deceased out of his car that night at Hilltop. After laying proper predicates the State, as is shown by bills of exception 17 and 18, introduced Mr. Campbell and Mr. Rheay, and asked each the following question: "If while the defendant was in jail he did not hear him make the statement that 'The last time I saw Herman Walden I put him out at the Palace rooming house at Hilltop,' to which the witness replied that he heard the defendant make such statement in jail." The contention of the State in its motion is that the statement of appellant thus proved, even if made while in jail, and unwarned, — was not a confession, but was made by him, and intended by him to be, an exculpatory statement; and it is urged that the State had the right to impeach appellant by proof that he made such statement while under arrest or in jail. Ferguson v. State, 31 Tex. Crim. 93, and other authorities are cited in the motion. The Ferguson case, supra, along, with the case of Quintana v. State, 29 Texas Crim. App. 401, and others similar, were overruled in Morales v. State, 36 Tex.Crim. Rep., which latter authority has been followed in many cases which will be found collated in Brown v. State, 55 Tex.Crim. Rep.; Dover v. State, 81 Tex.Crim. Rep.; Hext v. State, 104 Tex. Crim. 49; Woodson v. State, 111 Tex.Crim. Rep..

In the mind of the writer of this opinion there is strong appeal in the proposition that since the ground of objection to the admission of an incriminating statement made while under arrest, by one accused of crime, rests fundamentally upon the danger that such statement may be induced, made or be affected by fear arising from such custody, or hope of escape from punishment by such admission of guilt, or the coercion of the custodian officers; such statements should not be held to be confessions, and there appears much reason for making a distinction between an incriminating statement thus made and one exculpatory in character when made under the same surroundings; but we regard the law of this State as well settled in accordance with the rule laid down in Bailey's case, 40 Tex.Crim. Rep., followed by Hernan v. State,42 Tex. Crim. 464, and the cases last above cited and others in accord therewith. The effect of these decisions is to hold that the State can not prove against the accused, either directly or for impeachment purposes, statements made by him while under arrest and unwarned, except under some permissive statute. There being no sort of doubt in this case but that the State did prove against appellant statements made by him while in jail and unwarned and which were not reduced to writing, we can not escape the conclusion that the reversal ordered in the original opinion was correct.

The State's motion for rehearing will be overruled.

Overruled.