
    PHILLIPS v. STATE.
    (No. 5614.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1920.
    State’s Rehearing Denied March 24, 1920.)
    1. Criminal law <@=519(4) — Explanation OF POSSESSION OF STOLEN PROPERTY NOT CONFESSION.
    , Though constable suspieioned that defendant had stolen or received stolen chickens when he went to defendant’s restaurant and there found some chickens that had been killed and dressed, and would not have permitted defendant to escape, where defendant did not know of constable’s state of mind, statements made by defendant in explanation of his possession were not statements within rule prohibiting use of confessions made by one-under arrest, in absence of compliance with statute.
    2. Criminal law <@=>406(2) — Written statement BY PERSON BELIEVING HIMSELF IN CUSTODY NOT ADMISSIBLE WHERE NO WARNING.
    Though defendant was not in fact in custody, still, where the circumstances surrounding him when and after he was directed by the constable to go before the county attorney were such as to indicate to him that he was in custody, written statements made by him before' the county attorney about alleged stolen chickens in his possession were not admissible against him; it affirmatively appearing that no warning was given.
    Appeal from Williamson County Court; F. D. Love, Judge.
    Tom Phillips was convicted of theft, and appeals.
    Reversed and remanded.
    
      Dan Moody, of Taylor, for appellant.
    H. N. Graves, Co. Atty., of Georgetown, and Alvin M. Owsley, Asst Atty. Gen., for tlie State.
   MORROW, .1.

The appellant was convicted of theft, and punishment fixed at a fine of $25 and confinement in the county jail for one day.

Tlie state relies almost exclusively upon the statements of the appellant to connect him with the offense. It appears that the owner named in the information lost some chickens, and that the constable entertained the suspicion that the appellant was connect: ed with their disappearance, and went to appellant’s restaurant, and there found some chickens that had been killed and dressed. Appellant explained his possession of them by stating that he had purchased them. The appellant objected to this testimony, advancing the theory that it was not admissible because the rules with reference to the introduction of confessions were not complied with. We think the contention is not tenable. It is true that the officer testified that he held the appellant -under suspicion, and would not have permitted him to escape, but it does not appear that he gave any intimation of this state of mind to the appellant. The officer’s intention, unknown to the appellant, would not bring his statements within the rule prohibiting the use of confessions made by one under arrest in the absence of compliance with the statute. Hart v. State, 15 Tex. App. 230, 49 Am. Rep. 188; Craig v. State, 30 Tex. App. 630, 18 S. W. 297; Williams v. State, 53 Tex. Cr. R. 3,108 S. W. 371; Holmes v. State, 32 Tex. Cr. R. 361, 23 S. W. 687; Branch’s Annotated Texas Penal Code, p. 35, § 62.

It appears that, after learning from the appellant that he was in possession of some chickens, and obtaining from him his explanation of his possession, the officer made soma further investigation, and reached the conclusion that the appellant was guilty of the offense of either receiving stolen property knowing it to have been stolen or of theft. This conclusion the officer appears to have reported to the county attorney, and received from him verbal authority to bring the appellant before him, acting upon which he directed the appellant to appear before the county attorney, which was done. The county attorney asked the appellant if he desired to make a statement about the chickens, and appellant replied that he did. A statement was made and reduced to writing by the county attorney and signed by the appellant There is no reference to a warning given in the statement, and it affirmatively appears that none was given; the state relying for admissibility of the statement upon the proposition that the appellant was not under arrest at the time. He was not, according to the testimony of the officers, put in custody for some time after, "but they held him under surveillance, and would not have permitted him to escape; but we think the circumstances surrounding him when and after he' was directed by the constable to go before the prosecuting officer of the county were such as to indicate to him that he was in custody, and that the written statement there made by him was not usable against him. Patrick v. State, 74 S. W. 550; Callaway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575; C. C. P. art. 810.

For the error in admitting the written statement under the circumstances detailed; the judgment is reversed, and the cause remanded. 
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