McCain v. State

BEAUCHAMP, Judge. This is an appeal from the judgment of the District Court of Hardin County convicting appellant of the offense of burglary and assessing his punishment at two years in the penitentiary. For the conviction in this case the State relies principally on the written confession of the appellant while under arrest. From this confession we quote the following: “I, J. C. McCain, being in the custody of M. D. Jordan, Sheriff, and being duly warned by R. M. Briggs, Dist. Atty., (the person to whom this statement is made), first, that I do not have to make any state — 541 — ment at all, and, second, that' any statement I do make must be freely and voluntarily made and may be used in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following free and voluntary statement,” etc. It will be noted that this statement does not comply with the statute in that it does not say, as required, that the statement could be used “against him.” It merely says that it can be used “in the trial or trials of the offense or offenses concerning which this statement is made”; and so far as the warning is concerned, the appellant might have concluded that it could be used either for or against him. It has been frequently held that the warning must be given in accordance with the statute. Branch’s Ann. Texas P. C., Title I, Sec, 61, p. 38. It has been particularly held that where the warning stated that the confession could be used “for or against” the defendant, it is not a sufficient compliance with the statute. McVeigh v. State, 62 S. W. 757; Adams v. State, 86 S. W. 334. The written confession in this case contains the statement that it may be used in the trial of any case to which the statement pertains but does not limit the use, and it may as well be reasoned in the instant case that the party making it understood that it could be used for him as if he had said “for or against.” The statute is specific that one must be warned that the statement could be used against him. In construing this statute, this court has frequently held that such confession, when properly made, may be used against the party making it and not for him. A warning which states that the confession may be used for him having been held to be reversible error, we view the language in the confession before us to be of sufficiently similar effect to justify the application of the same rule. For the error of the court in admitting the statement, the case is reversed.