Bevers v. State

ON MOTION FOR REHEARING. Complaint is made of our opinion in one point, viz: that we erred in holding admissible testimony that appellant refused to give his name when arrested at the place where the still, mash, etc., were located. In disposing of this matter we used the expression: "The statement complained of was * * * res gestae * * * and admissible." Appellant insists that his silence when asked his name, was not a statement, — and should not have been admitted even as res gestae. Our Constitution, Sec. 10, Bill of Rights, guarantees that the accused shall not be compelled to give evidence against himself, and this is therefore above being affected by our statutes relating to confessions. Appellant cites Stach v. State, 260 S.W. Rep. 569; Myers v. State, 258 S.W. Rep. 821; Stanton v. State, 252 S.W. Rep. 519 and Carter v. State, 5 S.W. Rep. 128, but each of these cases rests on facts variant from those here before us, and what was there said might therefore be differentiated. In Carter v. State, supra, this court held it error to prove that after accused was arrested he refused to tell his name, saying however: "It was not shown that it was admissible evidence under any of the exceptions of the statute," and reference is made to the statute on confessions. The case seems to have been reversed for other reasons.

The bill of exception bringing this matter forward reveals no other act or statement of appellant in connection with the refusal to tell the officers his name. If nothing else occurred we would seriously doubt the admissibility of the fact that appellant kept silent when asked his name after he had been arrested. But appraising the bill in the light of what is revealed by the statement of facts we are of opinion the incident reflected by the bill does not call for a reversal. The bill itself shows that when the officers approached the still appellant ran some distance and only stopped after shots were fired by the officers; that he was immediately brought back to the still and then declined to give his name. The statement of facts shows the following facts testified to by one of the officers.

"After the defendant was arrested he came up and turned the fire off, he was brought up there by the officers. Mr. Hurdleston did not ask him to do that, and neither did I.He just voluntarily said he would cut them off, he said hewanted to cut off the stills, he might have an explosion." This was an act and statement of appellant which was unquestionably a part of the offense then being committed.

It is further shown that appellant testified as follows:

"My name is Bevers, yes, sir, I would not give my name to the officers when I was arrested. You wanted me to make a statement and I said 'No,' I said I wasn't ready to make a statement. You wanted me to make a statement. I told you I would tell you my name at the right time. I did not give the officers my name until I was brought up to the court house; I gave it to you before you found out what it was."

In this evidence appellant went much further than merely saying he declined to give his name after his arrest, and no objection was interposed to proof of anything save the refusal to state his name. True, appellant was not given the lowest penalty, but the facts showing his guilt were plain and made evident the fact that he was no maker of illicit liquor on a small scale, nor was this an occasional matter with him, and the probable effect of an error in procedure must always be determined in the light of the whole case. Viewing this case in the light of the testimony, we find ourselves unable to believe that proof that appellant at first refused to tell his name, but presently did, could have prejudiced the jury and affected the result.

The motion for rehearing will be overruled.

Overruled.