
    CARR v. STATE.
    (No. 9054).
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.)
    1. Criminal law <®=>78l(5) — Failure to inform jury when purported confession would be voluntary held reversible error.
    In burglary prosecution, where it was in issue whether defendant’s purported confession had been voluntarily made, failure to inform jury when statement would be voluntary held reversible error.
    2. Criminal law ©==>448(1) — Error to allow officer to state conclusion that confession was voluntarily made.
    In burglary prosecution, court erred in allowing officer to state that defendant’s purported confession was voluntarily made, as being a conclusion of officer.
    3. Criminal law <®=>I09(I (3)— Bill predicating error on improper cross-examination as to previous conviction defective in not stating what offense was.
    Bill predicating error on improper cross-examination of defendant, asking him about a previous conviction for some offense, was defective in not stating what offense was.
    4. Witnesses ©=>337(5) — State could not inquire into previous conviction unless it was for felony or misdemeanor involving moral turpitude.
    In burglary prosecution, state had no right to inquire into a previous conviction of defendant, if conviction was not for a felony or for a-misdemeanor involving moral turpitude.
    Appeal from District Court, Jones County; Bruce W. Byrant, Judge.
    John Carr was convicted of .burglary, and he appeals.
    Reversed and remanded.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The offense is burglary, with the punishment assessed at three years in the penitentiary.

The state identified and introduced in evidence a confession made by appellant while under arrest. While the state was developing its case in chief Mr. Britton, the city marshall of Hamlin, testified to having seen appellant sign the confession in question, to being present at the time it was taken, and that the warning was given by W. J. Brians, the justice of the peace. He then stated over appellant’s objection that the statement was “voluntarily made”; the objection being that the answer called for an opinion and conclusion of the witness upon one of the very issues the jury was called upon to determine. Britton did not at this time undertake to state the facts incident to securing the confession. Upon, that point appellant testified on direct examination as follows:

“I asked Mr. Britton, did I have to make a statement, and he said, Yes; by the law I had to make a statement; I told him I didn’t want to make a statement until I seen a lawyer, and also in the justice of the peace office he said I didn’t have to make a statement, but I had to answer Mr. Britton’s questions. I told Judge Brians that I didn’t want to make a statement; he told me I didn’t have to make a statement, but I had to answer Mr. Britton’s questions.”

Upon cross-examination appellant further testified:

“Judge Brians told me I didn’t have to make any statement, but I had to answer Mr. Brit-ton’s questions. * * * I answered Mr. Brit-ton’s questions. He told me I had to answer Mr. Britton’s questions; that is what Judge Brians told me.”

The witness Britton, then being recalled by the state, testified in substance that he told appellant he wanted a statement, and that Judge Brians warned him in the presence of Mr. Calhoun, the assistant county attorney; that Mr. Calhoun, being busy with other affairs, said to him (Britton) “You go ahead .and ask the questions you know all about the case,” and that Judge Brians then said to appellant, “You go ahead and answer Mr. Britton’s questions;” that Judge Brians did not say anything about appellant having to answer Britton’s questions; he just told him to answer the questions after he had warned appellant. Brians did not testify.

After calling the jury’s attention to the confession which had been introduced in evidence, the learned trial judge charged the jury that the statements contained therein would not .be admissible against appellant, unless they had been freely and voluntarily made, and that, if the jury entertained a reasonable doubt upon this issue, they would not consider any of such statements for any purpose. Attorney representing appellant requested the court to give a special charge, the substance of which was that, if Brians had informed appellant that he did’not have to make any statement, but that he did have to answer all questions which might be asked him by Britton, and that appellant believed he did have to answer such questions, and that so believing he answered Britton’s questions, and that thereafter the confession was made up and reduced to writing from the questions so asked and the answers given, then in that event the statement would not be a voluntary statement upon the part of appellant, and would be inadmissible, and that, if the jury found the confession was made under such circumstances, or if'they had a reasonable doubt thereof, it should not be considered by them for any purpose. This charge was refused. In declining to give it or one of similar import we think the learned trial judge fell into error. Britton liad testified over appellant’s objection that tbe confession had been voluntarily made. This evidence was before the jury for their consideration in connection with appellant’s testimony upon that issue and the further evidence of Britton when he was recalled. The jury were properly told they should not consider the confession, unless they believed it was freely and voluntarily made; but there 3s no charge given them advising when a statement would be voluntary or otherwise. Upon another trial the officer should not be permitted to state his conclusion that the confession was voluntarily made, but should be confined to stating the facts relative thereto, and leave the question of whether or not it was voluntary to be determined by the court and jury.

In view of another trial we call attention to another matter.. The bill presenting it is not sufficient as it now appears in the record to base a reversal upon. It does indicate, however, that upon the cross-examination of appellant the district attorney asked him something about a previous conviction for some offense; the bill being defective in not stating what this was, it shows that the court had sustained appellant’s objection to this course of inquiry, but that in the face of such ruling the district attorney persisted in asking appellant if he had not pleaded guilty and spent 90 days in jail; which question was answered in the affirmative. We gather from the bill enough to know that the learned trial judge thought the district attorney was inquiring about a matter which was improper. This being true the representative of the state ought to have desisted. If the conviction inquired about was not for a felony or for a misdemeanor involving moral turpitude, the state had no right to inquire into it.

For the failure of the court to give the special charge requested, the judgment must be reversed, and the cause remanded. 
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