
    WILLOUGHBY v. STATE.
    (No. 5574.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1919.
    On Motion for Rehearing, Jan. 14, 1920. On the Merits, March 3, 1920.)
    1. Bail <&wkey;65 — Recognizance eob appeal MUST SHOW PUNISHMENT IMPOSED.
    Appeal will be dismissed, the recognizance for appeal not showing the punishment fixed.
    On Motion for Rehearing.
    2. Bail <&wkey;>66 — Recognizance fob appeal in FELONY CASE MUST SHOW NAME OF OFFENSE.
    Recognizance required of one convicted of felony and desiring to appeal, being prescribed by Vernon’s Ann. Code Cr. Proc. 1916, art. 903, and article 320, having reference only to form of recognizance in a felony case pending in district court, must state more than that appellant was charged with and convicted of a felony, and must give the name of the offense.
    3. Bail <&wkey;72 — Recognizance fob appeal BEING INSUFFICIENT, FILING OF APPEAL BOND WILL BE ALLOWED.
    Appeal being dismissed because of recognizance for appeal not complying with Vernon’s Ann. Code Cr. Proc. 1916, art. 903, appellant will be allowed to file an appeal bond substantially as prescribed by article 904, and doing so appeal will be held to have been perfected, and will be reinstated.
    On the Merits.
    4. Burglary <&wkey;41(4) — Bubglabious entry HELD SHOWN.
    Evidence held sufficient to establish bur-glarious entry.
    5. CRIMINAL LAW <@=»1036(9)— OBJECTION TO EVIDENCE NOT LOST BY CROSS-EXAMINATION.
    Evidence being admitted over accused’s objection, he may cross-examine in respect thereto without loss of his objection and bills of exception.
    6. Criminal law <&wkey;517(4) — Rule of admissibility OF CONFESSION WHEN STATEMENTS ABE FOUND TRUE AND ESTABLISH GUILT HELD INAPPLICABLE.
    Rule that a confession is competent when in or in connection with it statements are made which are found to be true and conduce to establish accused’s guilt, such as finding stolen property, is inapplicable where officers found grips and opened them and observed their contents and intended to further examine them, and did so after, but not because of his statement that the grips were his, and there was no other evidence that they belonged to him.
    7. Criminal law <@==>516 — Admission of CRIMINATING FACT HELD A “CONFESSION.”
    Admission of a criminating fact, as that grips containing recently stolen goods are accused’s property, is a “confession” within Vernon’s Ann. Code Cr. Proc. 1916, art. 810, relating to admissibility of confessions.
    [Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Confession.]
    8. Criminal law &wkey;736(2) — Whether confession WAS MADE WHILE ACCUSED WAS IN CUSTODY IS ON UNCONTRADICTED EVIDENCE QUESTION FOR COURT.
    What' is an arrest or custody is a question of law, and under Vernon’s Ann. Code Cr. Proc. 1916, art. 734, as to province of court and jury, the evidence being uncontroverted and raising no issue of fact, it is for the court to decide whether confession was made while accused was in the custody, of an officer, relative to its admissibility under article 810.
    9. Criminal law &wkey;»531(3) — Confession held MADE WHILE ACCUSED WAS IN THE “CUSTODY OF AN OFFICER.”
    The uncontradicted evidence showing that when accused made his confession he was in fact under detention by officers, and nothing more being shown, he was in the “custody of an officer” within Vernon’s Ann. Code Cr. Proc. 1916, art. 810, as to admissibility of a confession.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Chester Willoughby was convicted of burglary, and appeals.
    Reversed and remanded.
    Mahaffey, Keeney & Dalby and S. I. Robi-son, all of Texarkana, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of burglary in the district court of Bowie county, and given two years in the penitentiary.

The Assistant Attorney General has made a motion to dismiss this appeal, because the recognizance of the appellant, as the same appears in the record, does not show the punishment fixed against appellant. The recognizance is as follows:

“This day came into open court Chester Wil-loughby, defendant in the above styled and numbered cause, who, together with Frank Davenport and j, A. Davenport, sureties, acknowledged themselves jointly and severally indebted to the state of Texas in the sum of one thousand ($1,000.00) dollars, conditioned that the said Chester Willoughby, who stands charged with the offense of a felony in this court, and who has been convicted of the offense of a felony in this court, shall appear before this court from day to day, and from term to term of same, and not depart therefrom without leave of this court, in order to abide a judgment of the Court of Criminal Appeals of the state of Texas in this cause.”

An inspection of the recognizance will show that the ground of the motion is well taken, and the appeal, for that reason, is dismissed. Hayes v. State, 204 S. W. 330; Goss v. State, 202 S. W. 956; Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611.

The motion is sustained, and the appeal dismissed.

On Motion for Eehearing.

This case comes before us both upon the appellant’s motion for rehearing and for permission to file a new obligation for appeal. The case was dismissed at a former day of this term because of a defective recognizance.

In the motion for rehearing appellant insists that it is not necessary for a recognizance in a felony case to state more than that appellant was charged with a felony and convicted of a felony, and article 320, Vernon’s C. C. P., is cited in support of this contention. Said article has reference only to the form of recognizance made necessary by our statute in felony cases pending in the district court, and binds the appellant only for his appearance in said court, and has no reference to the form of recognizance necessary on appeal. Article 903 of said C. O. P. is the article of our statute which prescribes the form of recognizance which should be given by one who is convicted of a felony, and who desires to appeal; and the length of whose sentence is such as that he may give bail pending such appeal. The form referred to and prescribed by statute contains a blank for the insertion of the name of the offense charged against the accused, as well as a blank for the name of the offense of which he is convicted; and we feel sure that, if it had been the intention of the Legislature that such recognizance should only state that the accused was charged with a felony and convicted of a felony, said form would have so stated.

In addition to believing that the recognizance on appeal should state the particular offense charged against the accused, and of which he has been convicted, we also believe that said recognizance should state the amount of his punishment. Our statute provides that, unless said punishment should be for less than a given number of years, hail on appeal is not allowable, and it should be made to appear by the recognizance that the punishment is for less than said number of years. In Goss v. State, 202 S. W. 956, the same being a felony ease, the appeal was dismissed because the recognizance of appellant, while attempting to follow the terms prescribed by article 903 supra, did not state that appellant had been convicted, and did not name the offense.

In Hayes v. State, 204 S. W. 330, also a felony case, the recognizance was held defective because the same did not set forth the punishment awarded.

The motion for rehearing is overruled.

Appellant’s motion to be allowed to file a proper obligation for appeal in case his motion herein for a hearing is overruled is granted, and appellant is allowed 20 days after the entry of this order in which to make and file with the clerk of the criminal district court of Bowie county, Tex., an appeal bond substantially as required by article 904, Vernon’s O. O. P., and to have a copy of said bond, certified by the clerk of said court, filed with the record in this cause in this court, in which event the said appeal will be held to have been perfected, failing which, the order of dismissal herein will stand, and the clerk of this court will at once notify the attorneys of record of appellant of this order.

On the Merits.

Appellant having filed an appeal bond as heretofore directed by the order of this court, the dismissal of his appeal will be set aside, the cause reinstated, and now considered on its merits.

Appellant’s first contention is that the evidence does not support the judgment either as to the fact of a burglarious entry or as to guilty participation by appellant.

Mr. Howell, the owner of the alleged burglarized house, had a place of business in Texarkana, Tex., which, according to his testimony, was locked and closed when he left it on Monday night, March 24, 1919, at which time the transom over the front door was also closed and latched. The next morning it was discovered that the holder or fastening of the transom had been broken off, and had dropped down, and was found lying by the side of the door; the transom was sprung so that it would not go back in place; its hinges were partly split out; and the dust and dirt which had settled in the transom had been rubbed off. It was further discovered that property which was in the store when closed the night before was missing.

The indictment charged burglary by breaking and entry in the usual form, and we think the evidence ample to support the allegation and to establish the fact that the house had been burglarized in tlie manner and form as set out in the indictment.

Referring to the other contention, that the evidence does not support the conviction, we observe that,- inasmuch as the case must be reversed for the erroneous admission of certain evidence, we will not express an opinion as to the evidence as a whole.

From the record it appears that something like a month after said burglary two handgrips and a suit case were found in different places under the house in Texarkana which was occupied by appellant and his mother, neither of whom appeared to be at home at that time, and neither of whom testified on the trial. Some evidence indicates that said house was a rooming house, though nothing appears to show that other persons actually occupied said house at the time the grips and suit case were found. When the officers found said grips and suit case, they took same to the police headquarters, and an officer was detailed to remain at the premises, with instructions to bring appellant down to the station when he came in; the avowed purpose being to investigate and see if he could explain the circumstances of the property being placed where it was. The appellant later came down to the police station with said officer, and as he entered the office it appears that he said, “That suit case and black grip is my property.” It is further made to appear that no one had asked him any question before he made this statement, and, except inferentially, no prior arrest was shown. The chief of police, however, testified that at the time the defendant was there he was being detained. Appellant complains of the admission of this evidence because at the time he was in the custody of the officers and under arrest, within the terms of article 810, Vernon’s C. C. P. The state asserts that, if any error was committed in the original admission of this statement, same was rendered harmless, because upon cross-examination appellant brought out the same ‘facts. We know of no decision of this court nor rule of criminal law which compels an accused, when evidence has been admitted over his objection, to refrain from the right of cross-examination as to such evidence, or else be penalized by loss of his objection and bills of exception.

It is also contended by the state that this evidence was admissible, under the well-settled rule that a confession is competent when in same, or in connection therewith, statements are made which are found to be true, and conduce to establish the guilt of the accused, such as the finding of stolen property or the instrument used in the commission of a crime. We agree to the correctness of the rule cited, but not to its application to' the instant case. The officers had already found the grips and suit case, and had brought same to the police headquarters before appellant appeared and made such statement. We find nothing in said declaration which could or did lead to the discovery of stolen property. The officers not only were then in possession of the grips, but they had looked into same, and observed that the contents were merchandise and articles of clothing. They intended to further examine said grips and did do so but not because of the statement made by him. There was no evidence, aside from appellant’s statement, showing that the grip and suit case in fact belonged to him. We cannot agree with this contention of the state.

The bill of exception urging that the admission of this statement was erroneous was prepared and filed by the court below in lieu of one presented by appellant, and is very full and explicit. It was not claimed by the state that appellant was warned at the time he made said statement, and the trial court states in the conclusion of his bill of exceptions that he overruled the objection because of his opinion that the accused was not under arrest at the time he claimed the grips and suit case, and, if he was under arrest, such statement was not a confession. Was this statement a confession, as contemplated by the terms of article 810 supra? The exact language used by appellant was, “That suit case and black grip is my property.” The suit case and grip at that time contained property which had been recently stolen from the burglarized store. The manifest purpose of the state, in introducing this evidence was to thereby add to the circumstance of finding said property under the house where appellant lived the cogent circumstance of his claim of ownership of the grip and suit case; else why offer it? It was an inculpatory statement, and, if competent, was very material. We have held that, when a direct confession will be inadmissible, a statement of collateral facts tending to establish the main fact is likewise inadmissible. Austin v. State, 15 Tex. App. 888; Nolen v. State, 9 Tex. App. 419; Haynie v. State, 2 Tex. App. 168; Majors v. State, 63 Tex. Cr. R. 488, 140 S. W. 1095. We think this rule a sound one. A confession is an acknowledgment of guilt, and guilt may be proven by a connected chain of acts and declarations as completely as by the direct testimony of an eyewitness, or a direct admission. A confession is as much one when an admission of a criminating fact, as when the admission of the entire crime, and we are unable to distinguish the difference between the law of a partial and that of a complete acknowledgment of guilt. We think the statement in question one within the term “confession” as used in article 810, supra.

Was the accused under arrest or in custody at the time the statement was made? The question of what is an arrest or custody is one of law for the court, and when the evidence is uncontroverted, and no issue of fact is thereby raised, it is for the court to decide whether or not the accused was situated so as that the statement was admissible or not. Article 734, Vernon’s C. C. P., and authorities cited; Clark v. State, 207 S. W. 98.

In the instant case the evidence was without contradiction to the effect that the chief of police left an officer at the house where the grips and suit case were found, with instructions to bring appellant to the station, and that in accordance with such instructions he was later brought there. The exact language attributed to the chief of police in the bill of exceptions in one place is as follows:

“Defendant was at the time he was there at the police station being detained by this police officer and myself.”

We regret our inability to agree with the conclusion reached by the learned trial judge about this matter, but to us it seems beyond question that appellant was “in the custody of an officer” when the statement of ownership of the grips and suit case was made, and, that being true, under our view that such statement must be treated as a confession, same was inadmissible. The record does not disclose whether appellant was then formally arrested, or permitted to go free; nor does it appear, by bill or otherwise, what transpired between him and the officer who brought him to the police headquarters; but the uncontradicted evidence showing that he was in fact then under detention by the officers would, we think, exclude the said statement. We are not passing upon what might be proper if the evidence were fully developed showing that he came voluntarily to the police station upon invitation, and that he was not then arrested and placed in formal custody, but permitted to go free.

Believing that, under the uncontradicted record, appellant was in custody, we conclude that the court erred in admitting this evidence, and that the judgment of the trial court; must be reversed, and the cause remanded. 
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