
    HANUS v. STATE.
    (No. 9633.)
    Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    Rehearing Granted June 25, 1926.)
    I.Criminal law <§=529.
    Confession complying with statute as to form, if voluntarily made, is admissible.
    2. Criminal law <§=520(l)— Promise of benefit to defendant to render confession inadmissible must be made or sanctioned by person in authority.
    To render confession inadmissible on ground that it was induced by promise of benefit to defendant, promise must be made or sanctioned by person in authority.
    On Motion for Rehearing.
    3. Criminal law <@=3531(1).
    State has burden of showing that no improper inducement existed when confession was made.
    v4. Criminal law <®=5I7(6).
    Officers are not only “persons in authority,” whose promise of benefit renders confession inadmissible, under Vernon’s Ann. Code Cr. Proe. 1916, arts. 809, 810, but the term may include the employer of accused or the injured party; the relation to accused being controlling factor.
    5. Criminal law <§=520(l).
    Presence of persons in authority is not sufficient to render confession involuntary and inadmissible, under Vernon’s Ann. Code Cr. Proc. 1916,. arts. 809, 810.
    6. Criminal law <§=531 (2).
    In determining whether confession was voluntarily made, age, experience, intelligence, and mental and physical condition of accused should be considered.
    7. Criminal law <§=736(2).
    Promise by injured party, a priest, in presence of peace officers, to aid' defendant, if he confessed crime, held to raise question of fact for jury as to voluntary nature of confession.
    Appeal from District Court, Lavaca County ; Lester Holt, Judge.
    Albert Hanus was convicted of arson, and' he appeals.
    Reversed and remanded.
    H. S. Paulus, of Yoakum, and C. L. Stavin-oha, of Hallettsville, for ai>pellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is arson. The punishment is two years in the penitentiary.

The only serious complaint made by the appellant is at the action of the court in permitting the state to introduce in evidence the voluntary statement made by the accused. The confession sufficiently complies with the statute as to form, and, if it was voluntarily made, it was admissible. There seems to be no controversy but that appellant was duly warned by the county attorney, the officer who took the confession. The objection to its voluntary character is based on the proposition that the Rev. G. Karutko, a Catholic priest, the party whose house was burned, told the defendant while he was under arrest that Karutko believed that defendant had burned the barn, and, if he did burn it, to go ahead and tell the truth about it, and he (Karutko) would help him all he could. Appellant admitted signing the confession before the county attorney, and does not claim that the county attorney made any representations causing him to sign the said statement. He contends, however, that the statement was not true, and that, by reason of the representations made to him by the injured party, Karutko, “that he would help him all he could,” he was thereby induced to sign same, and that same was not such a voluntary statement as the law contemplates. For the above reasons, appellant objected to the introduction of the voluntary statement. It is a well-settled rule in this state that, to render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be made or sanctioned by a person in authority. As sustaining this rule, Mr. Branch, on page 41 of his Ann. Penal Code, cites the following cases: Thompson v. State, 19 Tex. App. 616; Rice v. State, 22 Tex. App. 654, 3 S. W. 791; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905; Neeley v. State, 27 Tex. App. 329, 11 S. W. 376; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341; Thomas v. State, 35 Tex. Cr. R. 178, 32 S. W. 771; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991; Anderson v. State (Tex. Cr. App.) 54 S. W. 581; Williams v. State (Tex. Cr. App.) 65 S. W. 1059; Brown v. State, 45 Tex. Cr. R. 139, 75 S. W. 33.

The case of Rice v. State, supra, seems to be clearly in point. The witness Karutko was not a person in authority, as that term is construed by the decisions of this court, nor do we think any reversible error is shown in the court’s failure to submit this issue to the jury.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. j.

Appellant insists that we reconsider the complaint of the refusal to submit to the jury the question whether the confession made by the appellant was voluntary.

From the testimony of Karutko, it appears that he was the own^r of the barn that was burned; that on the day it was burned the appellant was brought to the witness by officers, and in the presence of the officers a conversation took place. From the testimony of Karutko-we quote:

“I do not remember the exact words I said to him. in regard to the burning of the barn, but, anyway, I told him I heard he had burned it. He was all scared up, or, at least, he looked that way. He was handcuffed, and I told him, ‘Now you are in it, and you' had just as well go and tell the whole thing.’ I told him, ‘You are in it. I am sure you burned it, and if you tell the whole thing I will try to help you out,’ because I had suspicions that there were others in it. I told him to tell the whole thing. I told him to tell them that he did it, and acknowledge it, and that if I could help him I would. I told him I would help him.”

Appellant testified, and denied tbe offense. He was arrested by Jaresb and Hermes. They came to bis borne, exhibited a pistol, ordered bim to “stick ’em up,” put handcuffs on bim, and directed that be get into their automobile. From tbe appellant’s testimony we quote:

“After they put the handcuffs on me, they put me in the- ear, and took me to Father Ka-rutko’s barn, and when I got there Emil Ja-lufka and Father Karutko was there. Emil Jalufka is a brother-in-law of mine. * * * Father Karutko came to the car. He is a Catholic priest, and I am a member of his church. I know him. He married me. Father Karutko asked me whether I did it — I mean, whether I set the bam on fire, and I told him I didn’t. I told him, ‘No.’ Then he said I did it, and that I might as well admit it, and that he was going to help me. He said if I would say I did it he would help me like'he helped Emil Jalufka. He told me to say .that I did it, and he would help me out of it. Emil Jalufka was charged with a felony in this court. At first I told him that I had not burned the barn, but he told me if I would say I burned it he would help me like he helped Jalufka. I knew that Emil Jalufka had been charged with a felony. After that they took me to Haliettsville, but they did not take the handcuffs off' me.
“After Father Karutko said he would help me if I would say I did it, I told him, ‘All right. I will say it.’ I told him I was going to say I did it.
“They brought me to Haliettsville, and I signed the paper you show me (Exhibit No. 1). I was in the county attorney’s office when I signed it. Tom Jaresh, 0„ E. Hermes, and Father Karutko ¿nd myself were present when I signed it.
“That statement is not true. The reason I made the statement was because Father Karut-ko told me to say I burned the barn and he would help me. In other words, I signed it because Father Karutko told me he would help me out.”

Appellant reiterated a number of times tbe statement that be did not burn tbe barn ; that the written statement prepared in the county attorney’s office and signed by bim was not true; that he made it upon tbe faith of being helped by Father Karutko, as bis brother-in-law bad been helped by the priest. His brother-in-law bad been charged with a felony, but with the aid of Father Karutko it had been reduced to a misdemeanor. Karut-ko also testified that, while in the county attorney’s office, and while the statement was in the course of preparation through questions propounded to the appellant, the witness promised to help the appellant. Karut-ko said:

“During the time he was telling this story to the county attorney, he asked me if I would help him, and I told him I would.”

In the statute it is said:

“The confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion.” 2 Vernon’s Tex. Crim. Stat. (Code Or. Proc.) art. 809.

Article 810, 2 Vernon’s Tex. Crim. Stat., naming the conditions upon which a confession may be received, declares that it must be voluntary, unless it be one which results in disclosing facts or circumstances found to be true which conduce to establish his guilt. There is no suggestion that the present confession comes within the exceptions.

“The burden of proof showing that no improper inducement existed when the confession was made falls upon the state.” 2 Wharton’s Crim. Ev. (10th Ed.) p. 1295, § 622j.

See, also, section 218.

Texas precedents to the same point will be found in Williams v. State, 37 Tex. 474; Binkley v. State, 51 Tex. Cr. R. 55, 100 S. W. 780, and other cases collated in Branch’s Ann. Tex. P. O. § 66. In the same section it is said:

“To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully.”

This declaration is in accord with many decisions of this court which are collated in the section mentioned and with the common law as well.

Among the persons coming within the meaning of “persons in authority” are officers and prisoners, the injured party and the accused, and employer and employee.

“The actual relations between the parties, and perhaps the relation as it actually appeared to the accused, is the controlling factor.” Wharton’s Orim. Ev. § 650a.

The mere presence of persons in authority is not sufficient to render the confession involuntary, but —

“It has often been held that a confession made in the presence of a person in authority, upon inducement offered by others, is involuntary, on the principle that such inducement receives the sanction of the persons who are present.” Wharton’s Orim. Ev. §§ 650a, 652b.

An element to be considered is likewise the condition of the accused, touching his age, experience, intelligence, and mental and physical conditions.

“The test is whether the accused was likely to view the promise as authoritative. And this test is to be determined by the standard of the person confessing.” 1 Wharton’s Orim. Ev. § 652.

Touching the circumstances which, in judicial decisions, have been regarded as sufficient, if found true, to show the confession to have been involuntary, many citations are found in the notes under the case of Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L. R. A. (N. S.) 850, 92 Am. St. Rep. 607. Omitting the cases which are not analogous to the facts of the present instance, we advert to the case of White v. State, 70 Ark. 24, 65 S. W. 937, and others. White was charged with arson for burning the house of McDonald. He confessed to McDonald. We quote from the opinion as follows:

“I said to him, ‘If you will tell me, I won’t bother you, I won’t tell any one.’ He then told me that he burned it. * * *
“The confession was made under the promise of the prosecuting witness, the owner of the house, that he would not be exposed or troubled by him (the witness) if he confessed.”

The facts before the court and the conclusion reached by the Supreme Court of Vermont in the case of State v. Walker, 54 Vt. 296, were not dissimilar from those in the case from which the quotation is taken. In the Vermont case the offense was arson. A like ruling was made in Sullivan’s Case, 66 Ark. 506, 51 S. W. 828; also in Womack v. State, 16 Tex. App. 178. The promise was made by the injured party. In neither of the cases mentioned was there evidence, as there is in the present case, supporting the inference that the promise made by the injured party was sanctioned by the officers who had custody of the accused. Under the text cited in Wharton’s Crim. Ev. § 652b, are cited many decisions supporting the proposition that a promise made in the presence of officers and with their sanction brings the promise within the category of one made by a person in authority. In the California case of People v. Silvers, 6 Cal. App. 69, 92 P. 506, Silvers was charged with arson. He made his confession in the presence of one of his employers. The accused at the time was in the custody of his employer, and appeared affected. His employer told him to brace up; that it would be better for him to tell everything that he knew. The court said:

The “statement urging defendant to confess being made in the presence of the district attorney, and not contradicted, may well have been construed as a promise - of favor if he confessed, rendering the confession not voluntary.”

In the present case, the inducement relied upon was made by the injured party; the priest of whose church the appellant was a member, and who, on a former occasion, had helped a relative of the appellant when charged with a felony. The promises were made in the presence of peace officers and the prosecuting attorney who took the confession under circumstances calculated to create the inference that they were sanctioned by the officers. We think upon principle and authority that at least a question of fact arose with reference to the voluntary nature of the confession. The precedents are numerous to the point that, where the evidence, tested by the rules stated above, raises an issue of fact touching the voluntary character of the confession, the court should submit the issue to the jury. See Branch’s Ann. Tex. P. C. § 75, p. 46; also Morris v. State, 39 Tex. Cr. R. 376, 46 S. W. 253; Cortez v. State, 43 Tex. Cr. R. 383, 66 S. W. 453; McVeigh v. State, 43 Tex. Cr. R. 17, 62 S. W. 757; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130.

Because of the refusal of the court to give the jury appropriate instructions to disregard the confession if not voluntary, the motion for rehearing is granted, the affirmance is set aside, the judgment is reversed, and the cause remanded. 
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