# Mason v. State > Court of Criminal Appeals of Texas · June 3, 1914 · 74 Tex. Crim. 256 URL: https://www.frixlaw.com/law-library/cases/3923250 ## Case - **Full name:** Eugene Mason v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 3, 1914 - **Citations:** 74 Tex. Crim. 256; 168 S.W. 115; 1914 Tex. Crim. App. LEXIS 319 - **Precedential status:** Published - **Opinion:** Dissent by Davidson - **Judges:** Habpeb, Davidson - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3923250 ## Opinion text DAVIDSON, Judge (dissenting).—I can not agree to the affirmance. The State’s theory was that deceased was killed a mile and a half or two miles from where appellant introduced evidence to show he was at the time of the homicide. The witnesses he introduced place him at such time and place as that if true he could not have been the party who committed the homicide, but this evidence placed him in the City of Texarkana about the distance above mentioned from the place of the homicide. The substance of this evidence was to the effect that he was in Texarkana on the night of the homicide, but was so situated that he could not have committed it. In other words, he proved an alibi but yet placed himself in the City of Texarkana. He was arrested the next day or within a day or so after the homicide. While under arrest the State was permitted to prove by parties having him under such arrest, statements that he, appellant, made to these officers. These statements were, in a sense, exculpatory, that is, the statements were to the effect that he was not in Texarkana on the night of the homicide, but was at a different place or different places some miles from the city. Of course this evidence was introduced by the State to meet and disprove the evidence introduced on the trial by him to show his presence in the City of Texarkana, but absent from the homicide. My brethren, sustaining the ruling of the trial court admitting this testimony, place it purely and simply upon the proposition that it was exculpatory and therefore beneficial to him. The State did not so regard it and did not introduce it for that purpose, hut to show that the testimony given on the trial was false. Taken in that sense, it is to be treated as a confession, or at least inculpatory testimony, and being under arrest, under all the authorities it was not admissible either as original or impeaching testimony. The question of impeachment, of course, is not in this case as defendant did not take the witness stand. The rule is well settled in Texas, that the unwarned statements of the defendant while under arrest can not be used against him for any purpose. See *268 Branch’s Crim. Law, sec. 234, for collation of authorities; Ware v. State, 3 Texas Crim. Rep., 597 ; Morales v. State, 36 Texas Crim. Rep., 234 ; Brown v. State, 55 Texas Crim. Rep., 572 ; Bailey v. State, 40 Texas Crim. Rep., 150 , and quite a number of other cases cited by Mr. Branch. The rule is as well stated perhaps as can be and as tersely by Mr. Branch in his work on Criminal Law in section 218 of that work. He uses this language: “The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement or circumstance done or made by the defendant while in confinement or custody and' not having been properly warned, which may be used by the State as a criminative fact against him.” There can be no question that his statement that he was out of the City of Texarkana on the night of the homicide and at a different place some miles away was used by the State as a criminative fact. It was introduced for no other purpose by the State and it could have no other effect. It was a direct attack upon his testimony introduced showing his presence in the City of Texarkana, but absence from the homicide. The writer does not understand how this testimony could be admissible. It was criminative and as used critically so, and evidently the jury so regarded it,- as did the court. In Hernan v. State, 42 Texas Crim.Rep., 464, appellant set up the defense that he was in another part of Texas when the alleged burglary occurred. This court held it was error to permit the State to prove that after his arrest he told the officer he was in Arkansas when the burglary occurred. In Bailey v. State, 40 Texas Crim. Rep., 150 , this court held it was error to permit the State to prove that after the arrest of the accused he said he knew nothing about the difficulty. In Wright v. State, 36 Texas Crim. Rep., 427 , which was a manslaughter case, the defendant’s defense was to the effect that deceased had a knife. It was held error on the trial to permit the State to introduce the unwarned statement that the deceased had a pistol. In Williams v. State, 10 Texas Crim. App., 526, in a horse theft case, it was held error to permit exculpatory statements as to where the defendant got the horse. This exculpatory statement was in contradition of the defense on the trial. In Parks v. State, 46 Texas Crim. Rep., 100 , being a cattle theft case, it was held error to permit exculpatory statements, the defendant having adopted another defense on the trial. See also Parker v. State, 57 S. W. Rep., 668 . These are a sufficient number of cases to show the general line of decisions. These decisions, of course, refer to matters like that included in the bills of exception in this case. So far as the writer has observed or noticed the cases with the rule announced in this dissent has been the rule in Texas until the Whorton case cited by my brethren and written by Judge Harper. I do not care to elaborate this matter. The Whorton case and the opinion of the majority in this case will have the effect to overrule all-the decisions heretofore rendered in Texas on this question. They are clearly in error. This judgment ought to have been reversed under all the authorities, unless it be the Whorton case. For these reasons I respectfully enter my dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3923250. Public record. Not legal advice.