Burns v. State , 123 Tex. Crim. 213 ( 1932 )

Most of the questions discussed in our original opinion and those presented in the motion for rehearing found their way into the record because of the consolidation of cases predicated on separate indictments against appellants, and because of a joint trial. We said in Sims v. State,119 Tex. Crim. 83, 45 S.W.2d 579: "Experience and observation demonstrates that the joint trial of two individuals upon separate indictments leads to confusion and difficulty in preparing a record for appeal." The truth of the above statement is further demonstrated by what we find in the present record. See, also, Ivey v. State, 51 S.W.2d 716.

It will be necessary frequently to refer to R. C. Burns and Tillman Burns, and for brevity and convenience they will be referred to as R. C. and Tillman. At the time the original opinion was prepared no objections to the court's charge appeared in the record. Such objections which were timely filed are now before us and bill of exception number three will be again reviewed in the light of these objections. It appears from the recitals in said bill that while Sam Brown, Tillman and R. C. were under arrest the sheriff had a talk with them and they made certain oral statements to him. If such statements became admissible in evidence, it is by reason of that part of article 727, C. C. P., which admits confessions if in "connection with said confession he (referring to accused) makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted * * * property," etc. The bill shows that the sheriff in his testimony continually used the word "they," such as "they made a statement to me with reference to the fruits of the burglary," and "they told about going out and going in the store, and on the way back what they had done." The sheriff testified that as a result of this conversation with the three parties he found at Tillman's house and near it certain property enumerated by him and which seems to have been identified as some of the property taken out of the burglarized store. It is recited as a fact in the bill that these statements were admitted against both R. C. and Tillman, but that none of the property was found where R. C. said it would be. The testimony was specifically objected to as against R. C. We understand from the bill that none of the fruits of the crime were discovered as a result of what R. C. told the officers. An examination of the statement of facts upon the same subject leads to the conclusion that the statement regarding the location of the stolen property were really made by Sam Brown and Tillman, although the testimony is somewhat confusing. There was a specific objection (paragraph seventeen) to the charge because the court had omitted to instruct that the statements of Brown and Tillman could not be used against R. C. We had occasion to consider practically this same question in Garcia v. State, 88 Tex.Crim. Rep.,228 S.W. 938, and Nelson v. State, 113 Tex.Crim. Rep.,21 S.W.2d 1045. In Garcia's case he and another party, while both were under arrest, each admitted to the officer that they had committed a burglary and each told the officer in detail where the property had been secreted. The officer being doubtful whether he could find the property from the description of its location, took one of the prisoners with him to aid in its recovery, leaving the other in jail. The stolen property was found at the exact point described by the prisoner left in jail, as well as by the one who accompanied the officer. Under such circumstances it was held that the confession of the prisoner who did not accompany the officer was admissible in evidence. The opinion makes it clear that the holding was based upon the fact that the stolen articles were found at the very place described by the prisoner who was left in jail. In the present case the bill contains a recital which amounts to a certificate of fact that none of the stolen property was recovered by reason of any statement made to the officer by R. C. In our opinion the statement testified to by the sheriff should not have been admitted against R. C. Of course, it was admissible against Tillman, who was also on trial, but the court should have responded to the objection and made it plain that it could not be considered as against R. C. The question under consideration was mentioned in Blake v. State, 81 Tex.Crim. Rep.,193 S.W. 1064. It was said in the opinion that the bill of exception presenting the question was indefinite as to the real conditions and environment attending the making of the statements of accused then on trial, as well as his codefendant. The court says:

"It seems from the bill that the court admitted the testimony on the theory that the fruits of the crime, or instruments by which it was committed, were found by reason of the confession, though this is not clear. Upon another trial this testimony will not be admitted unless a proper predicate is laid. * * * If proper predicate is laid, we are of the opinion the statements of the codefendant could also be introduced, as these conversations occurring between the sheriff and the two parties, each having made practically the same statement in the presence of each other at the same time."

It is not clear from the opinion what was in the mind of the learned judge writing it as to what would constitute a proper predicate.

Still another complication by reason of this joint trial arose when Tillman took the witness stand to testify. R. C. did not testify, neither did he call Tillman as a witness, and could not have done so under the statute (article 711, C. C. P.) had he so desired. Neither could he have prevented Tillman from becoming a witness because the latter was himself upon trial and had a right to testify in his own behalf. In his testimony Tillman completely exonerated R. C. of any complicity in the burglary. Tillman's testimony was to the effect that he and Sam Brown committed the burglary; that R. C. went with them to a point near the store, but was not a party to an agreement to commit the burglary, and was so under the influence of intoxicating liquor that he was in a stupor and knew nothing about what was going on and was asleep at the time Tillman and Brown came out of the store. With the record in this condition the court charged the jury that Tillman was an accomplice witness against R. C. If the charge was called for, it was erroneous in that it instructed the jury that they could not convict R. C. upon Tillman's testimony unless they first believed that Tillman's testimony was true and "tended toconnect R. C." with the offense charged and then that they could not convict R. C. unless there was other testimony in the case corroborative of Tillman's testimony which tended toconnect R. C. with the offense. It is doubtful if this defect in the charge was pointed out by sufficiently specific objection to call the court's attention to it; that it is erroneous has been so many times decided we discuss the matter no further, simply citing some of the authorities. Baggett v. State, 65 Tex.Crim. Rep., 144 S.W. 1136, in which many authorities are cited. One of the later cases is Sealy v. State, 47 S.W.2d 295, in which many other authorities are noted. We call attention to the form of the charge in order that the same mistake may not occur upon another trial, if one should be had of R. C.

In the ninth paragraph of the objections to the charge it was pointed out to the court that the defendant was complaining about the instructions with reference to Tillman being an accomplice witness because he had testified positively that R. C. had nothing whatever to do with the burglary, and that, as framed, the charge on accomplice testimony was not applicable. We are doubtful as to the propriety of giving a charge on accomplice testimony as to Tillman, at all under the circumstances. If there were any incriminating statements in his testimony and the court thought it proper to charge on accomplice testimony by reason thereof, then in framing the charge he should have avoided leaving the impression on the jury that as to the exculpatory statements it was necessary that they should also be corroborated. See Josef v. State,34 Tex. Crim. 446; Williams v. State (Texas Crim. App.),37 S.W. 325. In Puryear v. State, 56 Tex.Crim. Rep.,118 S.W. 1042, an instruction given by the court under somewhat similar conditions is set out. While not approved in all particulars, it protected accused under the circumstances mentioned. It is the opinion of the writer that it would have been better for the court not to have undertaken to charge on the matter at all unless requested to do so by appellant R. C.

There appears another instruction on accomplice testimony under most peculiar circumstances. It relates to statements made by Sam Brown which went into the record through the testimony of the sheriff. Sam Brown was not upon trial and did not testify in the case. Notwithstanding this, the jury was told that Brown was an accomplice and was instructed regarding his statements to the sheriff. We find no exception to the giving of the charge and therefore pertermit any discussion of the propriety of the charge having been given at all. The objections are directed to the form of the charge. We refer to Abbott v. State, 94 Tex.Crim. Rep., 250 S.W. 188, and Oates v. State, 67 Tex.Crim. Rep., 149 S.W. 1194, and Henderson v. State, 97 Tex.Crim. Rep., 260 S.W. 868, for a discussion generally of charges on accomplice testimony.

Our discussion of the questions presented in the motion for rehearing have been with reference to appellant R. C. Burns. We have not discussed the claimed errors as they relate to Tillman Burns for the reason that he went upon the witness stand and testified upon the trial and admitted his guilt. Such errors, if any, as may have been committed against him, would, under the circumstances, be harmless.

The motion for rehearing as to Tillman Burns will be overruled. As to R. C. Burns the judgment of affirmance is set aside, the motion for rehearing is granted, and the judgment is reversed as to him, and the cause remanded for the errors pointed out.

Affirmed as to defendant Tillman Burns. Reversed as to defendant R. C. Burns, and remanded.