
    DOZIER v. STATE.
    (No. 10490.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.)
    I.Searches and seizures <§=>7 — Defendant cannot complain of admission of testimony obtained by search of mother’s pasture without warrant.
    Defendant, in prosecution for cattle theft, cannot complain of testimony of finding of head and entrails of animal in pasture belonging to his mother, because search was made without a warrant. ■ ■
    2. Criminal law @=»5I8(I) — Admitting testimony of statements of unwarned defendant to deputy sheriff, immediately preceding arrest, held reversible error.
    Admitting testimony of statements, made by unwarned defendant to deputy sheriff immediately preceding arrest, held, to constitute reversible error.
    3. Criminal lawi <§=>516 — Statement of defendant, charged with cattle theft, in alleged written confession, of refusal to say what he did with hide, held inadmissible.
    - In prosecution for. cattle theft, part of alleged written confession of defendant, wherein he stated that he did not care to say what he did with hide, held inadmissible as not being a voluntary confession.
    Appeal from District Court, Haskell County; Bruce W. Bryant, Judge.
    Spencer Dozier was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    Brooks, Smith & Robinson, of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Haskell county of theft of cattle; punishment, two years in the penitentiary.

Mr. Singleton placed a heifer in a pasture belonging to appellant’s mother, to breed her to a male therein. Appellant killed her that night and peddled out the beef the next morning. He claimed that he thought she was a heifer belonging to his mother, and that his mother had consented for him to kill an animal belonging to herself and peddle it out for beef. The pasture contained something over 500 acres.

There are a number of bills of exception reserved to argument of the district attorney, but, in view of our disposition of the case and the likelihood that such argument will not appear upon another trial, we do not discuss same.

We are not in accord with appellant’s complaint at the admission of the testimony of the finding of the head, entrails, feet, etc., of the animal in the pasture referred to, the objection being that the parties finding said head, etc., had no search warrant. The pasture belonged to appellant’s mother and was under her control.

By his bill of exceptions No. 5, appellant complains that Deputy Sheriff Richards was permitted to testify that, after finding the buried head of the alleged stolen animal, the entrails, etc., in the pasture of appellant’s mother, and knowing that appellant had- peddled out beef the day before, he suspected appellant and drove down to his mother’s home, saw appellant in the cotton patch and motioned to him to come out there; when appellant came to the car, the following conversation took place, as revealed by the bill of exceptions:

“I says, ‘Buster, what did you do with the hide?’ He says, ‘X sold it.’ I says, ‘Whereabouts?’ Pie says, ‘At Knox City or Rochester,’ and I says, ‘Aw, now, you didn’t.’ I says, ‘What did you do with the head?’ He said, ‘It’s over there.’ I says, What did you boys want to bury that head for?’ He says, ‘I don’t know.’ I says, ‘Buster, I expect you boys got yourselves in trouble over that.’ I says, ‘Did you know that was Mr. Singleton’s yearling?’ He says, ‘I don’t know.’ I says, ‘I expect you better come and go with me to Haskell.’ Then is when I arrested him right there, and he got his cap and we went on down and got Mr. New-grove, and after I got them in the car I warned them; I says, ‘You boys — .’”

It was admitted that, at the time, appellant was unwarned that said statement was not reduced to writing or signed, also, that appellant knew Mr. Richards was deputy sheriff; and that immediately at the conclusion of the statement said officer formally arrested appellant. We deem it unnecessary that it appear in evidence, in so many words, that appellant knew he was suspected of crime at the time he made the statement, but the officer very nearly so stated when he said to appellant, “Buster, I expect you boys got yourselves in trouble over that,” immediately after which statement Richards asked appellant, “Did you know that was Mr. Singleton’s yearling?” to which appellant replied, “I don’t know.” We think the conclusion irresistible that Richards would not have let appellant escape after the first admission made by the latter to the effect that he had sold the hide of the heifer in question at Knox City or Rochester. Under all of our authorities, the statement appears to us to have been inadmissible. Roberts v. State, 91 Tex. Cr. R. 433, 239 S. W. 960; Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468; Parham v. State, 87 Tex. Cr. R. 454, 222 S. W. 561; Deckerd v. State, 88 Tex. Cr. R. 132, 225 S. W. 166; Campbell v. State, 89 Tex. Cr. R. 243, 230 S. W. 695; Stanton v. State, 94 Tex. Cr. R. 366, 252 S. W. 519; Little v. State, 100 Tex. Cr. R. 167, 272 S. W. 456.

Nor do we think the court below should have admitted in evidence the concluding paragraph in the alleged written confession of appellant taken by the county attorney, which concluding statement is as follows:

“I do not care to say what I did with the hide.”

This expression was not, in any sense, a voluntary confession, but the contrary. Suppose, after the. state’s attorney had warned appellant, the latter had then said, in writing, or orally:

“I refuse to divulge any of the facts,” or “I decline to say whether I killed this animal, or stole this heifer,” etc., etc.

'Could it be contended that such denials could be introduced against him under the guise of being a confession? We think not. If appellant refused to tell where the head was, or the feet were, or what he did with the hide, etc., these refusals were not admissible if he was under arrest, and that they were written down and signed by appellant does not make them admissible as confessions, in our opinion. To hold otherwise would be to abrogate the rule that silence or refusal to talk, or the oral or written denials of one accused of crime, when under arrest, may not be proved against him.

For the errors above mentioned, the judgment is reversed and the cause remanded. 
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