
    Ben Wiseman v. The State.
    
      No. 306.
    
    
      Decided May 19.
    
    Evidence — Confessions Under Arrest Inadmissible, When. — It is well settled that the admission in evidence of confessions made by one nnder arrest, who is unwarned and nncantioned, and which confessions do not lead to the discovery of any fact or circumstance connecting or tending to connect defendant with the crime, are illegal testimony, and will necessitate a reversal.
    Appeal from the District Court of Bell. Tried below before Hon. W. A. Blackburn.
    This appeal is from a conviction for burglary, wherein the punishment assessed was two years’ imprisonment in the State reformatory, the jury having found the defendant to be under the age of 16 years. Appellant and one Ed Yining were jointly indicted for said offense, but defendant was alone put upon bis trial.
    Tbe testimony of tbe witness Holtzclaw as to tbe confessions of defendant, as it appears in defendant’s bill of exceptions, is as follows: “That when tbe property bad been found, carried back, and identified, be and tbe defendant separated; be (Holtzclaw) going to tbe court bouse, and tbe defendant going across tbe creek after Ed Yining, tbe alleged accomplice; that be (Holtzclaw) talked tbe case over to tbe sheriff and other parties; that be and tbe sheriff after awhile went out of tbe court bouse and saw tbe defendant and Ed Yining coming; that be and tbe sheriff met tbe defendant and Yining; that Yining denied all knowledge of the breaking; that be brought both Yining and Wiseman to tbe sheriff’s office and left them in charge of another officer; that be went up and saw tbe State’s attorney, and then came down and got tbe defendant and Yining and carried them to tbe office of tbe State’s attorney up-stairs; that be left Yining in charge of a gentleman in one office, and carried tbe defendant in tbe office where tbe State’s attorney was; when in there be and tbe said attorney asked tbe defendant to tell them all about tbe case; that tbe defendant then said that be was out doing a job when Ed Yining broke in and got tbe pistols; that Ed Yining was then brought in and said to tbe defendant, ‘You know you helped me prize open tbe door of tbe chest,’ to which defendant assented; that Ed Yining then told all about it in tbe presence of the defendant; that defendant said Ed Yining got tbe pistols out of tbe chest; that defendant was under arrest, and bad been some little time when be made these statements in tbe district attorney’s office; that he was not warned or cautioned; that tbe stolen property bad already been found, identified, and returned.”
    
      Winbourn, Pearce & Kinnard, for appellants.
    — Tbe court erred in admitting tbe testimony of tbe witness Holtzclaw, when recalled by tbe State, which appears in defendant’s bill of exceptions number 1, because all of tbe testimony is illegal, as shown by tbe latter part of tbe same, the confessions being made subsequent to tbe discovery and return of tbe stolen property, while the defendant was under arrest, without being properly cautioned, and because subsequent to tbe finding of tbe stolen property and prior to tbe alleged confessions, defendant and tbe officer Holtzclaw bad separated. Code Crim. Proc., art. 750; Weller v. Tbe State, 16 Texas Crim. App., 200; Walker v. Tbe State, 2 Texas Crim. App., 326; Nolen v. The State, 14 Texas Crim. App., 474; Bean v. Tbe State, 17 Texas Crim. App., 60; Sands v. Tbe State, 30 Texas Crim. App., 578; Brown v. Tbe State, 26 Texas Crim. App., 308; Yan Musgrave v. Tbe State, 28 Texas Crim. App., 57.
    
      
      B. L. Henry, Assistant Attorney-General, for the State.
   SIMKPNS, Judge.

— Appellant was indicted with one Ed Vining for burglary, and his punishment assessed at two years in the reformatory.

There is but one question to be considered. The State was permitted, over the objections of appellant, to prove by the witness Holtz-claw that appellant admitted his participation in the burglary. It was shown at' the time of his confession that appellant was under arrest, and was neither warned nor cautioned; that the stolen property had already been recovered, having in fact been delivered to the officer by appellant himself. It was further shown that appellant was weak-minded, through disease, though perhaps he knew it was wrong to break into a store or steal. It is well settled that confessions made by one while under arrest, who is unwarned or uncautioned, and which confessions do not lead to the discovery of any fact or circumstance connecting, or tending to connect, defendant with the crime, are illegal testimony, and will necessitate a reversal. Van Musgrave’s case, 28 Texas Crim. App., 57; Davis’ case, 23 So. W. Rep., 687; Jackson v. The State, 29 Texas Crim. App., 458; Willson’s Crim. Stats., secs. 2472, 2473.

Had the alleged confession been made at the time when appellant was asked about the burglary, and went and got the pistols, a different question would have been presented. But the confession here sought to be introduced was made subsequently, and after appellant denied any participation in the burglary itself, and while under arrest. There is no question as to the materiality of the evidence, for it was offered and introduced over appellant’s objection after the testimony had closed, and the opening argument had begun.

The judgment is reversed and cause remanded

Reversed and remanded.

Judges all present and concurring.  