
    CLARK v. STATE.
    (No. 5228.)
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1918.)
    1. Criminal Law <©=406(3) — Okal Statements Made While “Undek Arrest.”
    Verbal statements concerning stolen property, made to arresting officer by defendant while he understood that he was under arrest, but before he was taken to jail, helé to have been made by defendant while “under arrest,” within Code Cr. Proc. 1911, art. 810.
    2. Criminal Law <®=519(3) — Oral Statements Made While Under Arrest.
    Under Code Cr. Proc. 1911, art. 810, as to oral confession made by accused while in custody of an officer being inadmissible, it is unnecessary that arrest be made in formal words if it clearly appears from the surrounding facts. Prendergast, J., dissenting.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    H. A. Clark was convicted of the offense of concealing stolen property, and appeals.
    Reversed and remanded.
    Weeks & Weeks, of Wichita Palls, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the offense of concealing stolen property.

The property involved was certain Michelin automobile casings and certain spark plugs. The state relied upon circumstantial evidence, a part of which consisted of verbal statements made by the appellant. The error complained of is predicated upon the proposition that these statements were made while appellant was under arrest, unwarned, and were such as the state was inhibited from using by the terms of article 810, Code Cr. Proc.

The deputy sheriff, having appellant under suspicion of committing the offense, went to appellant’s place of business and told him he wanted him to come to the sheriff’s office. Appellant went into a room for the purpose of changing his clothes. His wife also went in the room, and the deputy sheriff followed, requiring that appellant should have no conversation with his wife. On going to the sheriff’s office with the officer, appellant was interrogated by him with reference to the property in question. He was dismissed at noon with instructions from the officer to return after lunch, which he did, remaining in company with the officer mentioned and another for some time, after which he was directed to accompany them in an automobile to his place of business, which they desired to search, and which they did search in his presence; and during the search one of the automobile tires upon the possession of which the prosecution is founded was found by the officers through their own efforts in searching the premises. Appellant was then taken by them in the automobile to his room, which was searched, after which they took him in the same manner to his place of business, and after making further search took him before the grand jury, and immediately after he was released therefrom he was placed by said officers in jail. He understood that he was under arrest from the beginning.

The view taken by the state is that the appellant was not under arrest until he was taken to jail. This is more strict than the law contemplates. The rule stated in Patrick’s Case, 74 S. W. 551, is thus quoted:

“If by the acts and conduct of an officer having the party in charge he is led to believe he is under arrest or is in his own mind conscious of being under arrest, then the confessions, not coming within any of the exceptions named or implied in the statute, are not admissible.”

It is not necessary that the arrest be made in formal words; it may clearly appear from the surrounding facts. Nolen v. State, 8 Tex. App. 585; Nolen v. State, 9 Tex. App. 425; Zimmer v. State, 64 Tex. Cr. R. 114, 141 S. W. 781; Jones v. State, 52 Tex. Cr. R. 207, 106 S. W. 126; Jones v. State, 44 Tex. Cr. R. 408, 71 S. W. 962; Buckner v. State, 52 Tex. Cr. R. 271, 106 S. W. 363; Calloway v. State, 55 Tex. Cr. R. 263, 116 S. W. 575; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920; Oliver v. State (Tex. App.) 197 S. W. 185.

During the appellant’s examination by the officers in the sheriff’s office he declared that he did not handle Mechelin tires, and during the search in his place of business, the officers having discovered a Mechelin tire with the number cut off, and calling appellant’s attention thereto, appellant stated, “Yes,” and was then asked if he had any more Mechelin tires, to which he replied, “No.” He also said that the tire first found was a “second.” To this one of the parties replied, the Mechelin people do not make “seconds.” Appellant declared that they did. He was also asked where he got the tire, replying that it was on a car he traded for. He also said, in response to questions asked him about other Mechelin tires found in his place of business, that he bought them on a Ford. He also said, in response to an inquiry by the officers, that he did not know there were any spark plugs in his desk or trunk; that he had had to buy sopie because he did not think he had any.

Appellant’s defense on the trial was that he had bought the spark plugs found in his possession, and that he had “bought the four Mechelin tires in his possession from a person who brought them to his place of business. The state introduced proof of his statements after he was taken to the sheriff’s office and while ha was in company with the officers during the search of his room and place of business, and then introduced evidence to show that the statements thus proved to have been made by appellant were false, and they, being contradictory of his defense urged upon the trial, were used against him by the state to prove his guilt.

A like state of facts was passed upon in the case of Dover v. State, 197 S. W. 196. The remarks made in the concurring opinion in that case express our views with reference to the admissibility of the statements used against appellant and made by him while he was under arrest and unwarned. From that opinion the following quotation is taken:

“In agreeing to the reversal of this cause, we deem it proper to state that in our judgment the testimony given by the officers who had appellant under arrest that while under arrest, without warning, he made in their presence a verbal statement which was used on the trial against him, was not admissible. The Code of Criminal Procedure (article 810) provides that the ‘confession [of the accused] shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him, which written statement shall show that he has been warned by the person to whom it was made.’ The purpose and effect of this statute is to prevent the prosecution from using agamst the accused the testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks to use to prove his guilt.
“The correct rule, we think, is stated in Hernan’s Case, 42 Tex. Cr. R. 464, 60 S. W. 766, which is summarized in the syllabus as follows: ‘A confession or admission of an inculpatory fact by a defendant, where he is under arrest and unwarned, cannot be used as evidence against him. Any fact or circumstance involved in a statement by defendant while in jail or under arrest, and when he has not been cautioned, which may be used by the state as a criminative or inculpatory fact against him, comes within the statutory rule as to confession, although the same may not be technically a confession or admission. And defendant cannot be impeached as to such statements, following Bailey v. State, 40 Tex. Cr. R. 150 [49 S. W. 102].

“Other cases in point are the following: Wright v. State, 36 Tex. Cr. R. 432, 37 S. W. 732; Williams v. State, 10 Tex. App. 527; Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301; Brown v. State, 55 Tex. Cr. R. 581, 118 S. W. 139; Adams v. State, 16 Tex. App. 172; Wimberly v. State, 22 Tex. App. 510 [3 S. W. 717]; Rogers v. State, 44 Tex. Cr. R. 353 [71 S. W. 18]; Binkley v. State, 51 Tex. Cr. R. 57, 100 S. W. 780; Nolen v. State, 9 Tex. App. 419.”

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

I believe the opinion I wrote in the Dover Case, 197 S. W. 196, is correct, and I therefore respectfully dissent. 
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