1. Confession Made While Under Arrest — Charge. — Where a confession made while the accused was under arrest is introduced in evidence, but there is a conflict in the evidence as to whether the officer having him in custody cautioned him before it was made, notwithstanding the officer so swears, Held, that the court should have instructed the jury, in effect, that unless they believed the officer had so cautioned him they should entirely disregard the confession as evidence of guilt.
2. Same — Impeachment of Defendant. — If a confession be made by a defendant while under arrest, and when he has not been cautioned, such confession is admissible to impeach the credibility of defendant when a witness, but not to establish his guilt. But if in addition inducements were held out to defendant to make the same, and no fruits of the crime were discovered in consequence thereof, then his confession is not admissible, either in proof of guilt or as an attack upon his credibility when he has been a witness.
3. Same — Inducements to Make Confession. — As a general rule, if the confession was made under inducements held out to accused they are not admissible for any purpose, though he had been previously cautioned.
4. Discovery of Fruits of the Crime by Reason of the Confession. — Under our statute an exception to the above general rule is, that though the confession of a party under arrest was made on account of inducements held out to him, yet, "if in connection with his confession he make statements of facts or of circumstances that are found to be true which conduce to establish his guilt, such as the finding of secreted or stolen property," etc. (Code Crim. Proc., art. 750), the confession is admissible; but the fruits of the crime must have been discovered by or through the statements or confessions in order to render them admissible.
HURT, PRESIDING JUDGE.
This is a conviction for arson. Without the confession of the accused, the evidence is not sufficient to support this conviction. Deputy Sheriff Watts swears, that he cautioned accused, and this being so, the confessions were admissible; but there are strong circumstances in this record which tend to show that Watts had not cautioned the defendant at any time. Under this condition the court should have instructed the jury, that if they believed that Watts had cautioned the accused before the latter made the confession, then such confession should be considered by them, together with all other evidence before them; but that if they believed that the accused had not been so cautioned, they should entirely disregard the confessions.
Appellant swears, that such inducements were held out to him by the deputy sheriff as caused him to confess his guilt; but that in fact he was not guilty and knew nothing of the crime. If the inducements sworn to by the defendant were in fact held out to him by the deputy sheriff, then his admissions of guilt were not admissible for any purpose, though the defendant was cautioned. Under our statute, if a statement made by the accused leads to a discovery of the fruits of the crime, then such statements will be admissible as a confession, although at the time the accused was under arrest, or inducements were held out to him to make the statement. Weller v. The State, 16 Texas Crim. App., 200. But to render the confession admissible under this exception, the facts or circumstances must be discovered by means of the statements made. If they had already been discovered when the accused made his statement, or were not discovered by means of the statement of the accused, they are not admissible. Walker v. The State, 2 Texas Crim. App., 326; Allison v. The State, 14 Texas Crim. App., 122; Nolen v. The State, Id., 474. In this case there were no facts and circumstances found to be true in pursuance of the confession which conduced to establish the guilt of defendant. The trial judge so held, and we think the holding correct. As there was a conflict in the testimony of appellant and Watts as to whether or not the latter held out inducements to appellant, such as to render his confession inadmissible, the court should have submitted this question to the jury, instructing them, in effect, that if they believed from the evidence that such inducements were held out, then such confession was not admissible for any purpose — could not be used to prove guilt, or as an attack upon the credibility of the defendant as witness. If, on the other hand, no such inducements were held out, and appellant was cautioned, then to consider the confession. But appellant testified in the case. This being so, the confession of the accused, though not cautioned, could be used by the State, not for the purpose of proving guilt, but to affect his credit as a witness. If, however, he was induced to confess by the promises of the deputy sheriff, no fruits of the crime being discovered by reason thereof, his confession could be used for no purpose whatever. These rules were not given in the charge of the court, though some of them were requested by counsel for appellant.
For the omission in the charge, the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.
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