Bell v. State , 31 Tex. Crim. 276 ( 1892 )

Appellant was convicted of the theft of property over $20 in value, and sentenced to two years in the penitentiary, from which judgment he appeals to this court.

1. The application for a continuance having been overruled by the court, and no bill of exception taken thereto, it can not be considered. Willson's Crim. Stats., sec. 2187.

2. Appellant complains that the sheriff was allowed to testify as to confession of guilt made by him while under arrest.

The evidence shows that defendant made a statement to the sheriff to the effect that he had taken the watch and chain from the bureau of his employer. Upon trial he took the stand and stated that he had found the watch and chain in the road. The facts further show, that after the statement was made to the sheriff, that officer told him that his statement could be used against him, if he made it. After being warned appellant declared his statement to be true. The court admitted the evidence. We are of the opinion that there was no error; it was admissible on two grounds, as a confession and as impeaching testimony. Ferguson's case, ante, p. 93.

3. The same rule applies to the objection made to the testimony of Bird Mays. While defendant, by refusing to testify, can avail himself of all the safeguards the law threw around one whose lips were sealed under the policy of the common law, yet when defendant takes the stand and makes himself a witness in his own behalf, he, under the doctrine of the Meuly case (ante, p. 155), places himself on the plane of any other witness, and subject to impeachment in the same manner.

4. Defendant complains of the action of the court in requiring the attorney to proceed with the trial of this case when the attorney was engaged, with others, in the conduct of another criminal case before a special judge sitting in the same court. We can readily see how the defendant in the case on trial before the special judge can complain of the injury to his cause, if any was done, but do not understand how the defendant in the case at bar can complain, who had the benefit of the counsel's services.

There are no other questions raised that need be considered in the case, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.