
    SANDERS v. STATE.
    (No. 10826.)
    Court of Criminal Appeals of Texas.
    March 30, 1927.
    Criminal law &wkey;>530 — Admitting confession, not witnessed by person other than peace officers, where defendant signed by mark, held reversible error (Code Cr. Proc. 1925, art. 727).
    Under Code Cr. Proc. 1925, art. 727, admitting confession of theft signed by the defendant’s mark, where state failed to show that confession was witnessed by some person other than peace officers, over defendant’s objection, held reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Willie Sanders, alias Son Avery, was convicted of theft from the person, and he appeals.
    Reversed and remanded.
    C. C. McKinney, of Cooper, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   RAKER, J.

The appellant was convicted of theft from the person, and his punishment assessed at two years in the penitentiary.

The record discloses that the appellant was charged with stealing from the person of one Alice Carson, while she was asleep in the depot at Greenville, Tex., a purse and $7 in money. The prosecuting witness made complaint to the officers, and the appellant was arrested on the following day. Appellant made a written confession to the county attorney admitting the-theft, and, being unable to read and write, he signed his name to the confession by making bis mark. This signature was witnessed by four peace officers.

Tbe record contains ten bills of exception, but, after a careful examination of same, we are of tbe opinion tbat bill No. 8 presents tbe only serious question for tbe consideration of this court. This bill complains of tbe introduction of tbe appellant’s confession in evidence by tbe state; tbe' objection urged being that appellant signed said confession toy making bis mark thereon, being unable to read and write, and that said signature (mark) was not .witnessed by some person other than a peace officer, as required by article 727, C. O. P. 1925, which states, among other things:

“If the defendant is unable to write bis name, and signs tbe statement by making bis mark, sucli statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”

The facts in the instant case fall squarely within the provisions of tbe statute quoted. When appellant’s written confession was offered by the state and properly objected to by appellant, it devolved upon tbe state to prove tbe facts which rendered said confession admissible, and, tbe state having failed to show that the confession was witnessed by some person other than a peace officer, said confession was erroneously admitted in evidence over appellant’s objection. Richardson v. State, 92 Tex. Cr. R. 526, 244 S. W. 1021; Nixon v. State, 95 Tex. Cr. R. 126, 252 S. W. 1067.

For the error above discussed, we are of the opinion that the judgment of the trial court should he reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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