Opinion

Garver v. State

  • 158 Tex. Crim. 585
  • 258 S.W.2d 812
  • 1953 Tex. Crim. App. LEXIS 1706
Court
Court of Criminal Appeals of Texas
Filed
Apr 29, 1953
Status
Published
Author
Morrison
On the bench
Woodley, Morrison
Cited by
10 cases
Authority
More cited than 10.8%

The opinion

*591 ON MOTION FOR REHEARING.

MORRISON, Judge.

Appellant, in a forceful motion for rehearing, has again urged as error the failure of the trial court to define principals, accomplices and accessories in his charge.

He restates his contention as follows:

The witness Daniell testified for the state that the appellant went into the burglarized building with him, while Officer Word, also a witness for the state, testified that he saw the appellant outside in a pickup truck. This, he said, raised an issue as to whether the appellant was a principal or an accomplice, and he contends that such issue should have been presented to the jury for their determination.

As stated in the original opinion, the court required a finding that the accused actually entered the burglarized premises before he could be convicted.

Had the court charged on the law of principals, it would have been more onerous on the accused than the charge that was given, because such a charge would have authorized a conviction if the jury found that the accused was keeping watch.

We have carefully studied the appellant’s objections to the court’s charge and are unable to find therein any clear and understandable complaint to the court’s failure to tell the jury that if they found that the accused was an accomplice to the burglary that they should find him not guilty.

If an accused is dissatisfied with the court’s charge, he should make his objections in specific terms, thereby clearly informing the court of what he wants or does not want in the charge. A general objection that the court failed to charge on appellant’s defense “especially as to the law of accomplices and principals” will not suffice.

The appellant did not testify, and the only evidence offered by him related to the formalities of taking his confession.

We dispose of this contention by concluding that the facts did not raise the issue, and the appellant’s objection was too vague to put the court on notice as to what kind of a charge he desired.

*592 Appellant takes us to task for citing a civil case in support of our original holding as to the formalities of the execution of the confession and insists that Nixon v. State, 95 Tex. Cr. Rep. 126, 252 S. W. 1067 , should be here controlling. We shall now attempt to more fully differentiate the facts in the case at bar from the facts and the holding in the Nixon case.

In the Nixon case, we held that the confession became an executed document when it came into the hands of the prosecuting officers and that the witness might not breathe life into it two months later by then affixing their signatures thereto.

In the case at bar, there had been no delivery of the confession to the prosecuting officers, because Nurse Johnson testified that after she entered the room the appellant read the confession and then asked her to witness it.

In the Nixon case, the signatures of the witnesses were affixed in the absence of the accused and without his consent.

In the case at bar, the accused was present when Nurse Johnson witnessed the instrument and requested her to do so.

In the Nixon case, the addition of the names of the witnesses was clearly an afterthought on the part of the prosecutor.

In the case at bar, the deputy sheriff testified, “I had to have another witness and I went off and got her and brought her back and she signed her name.”

Appellant contends that there is no showing that the warning was given the accused in the presence of the witness Johnson. We do not completely agree therewith. The warning appeared on the face of the instrument, and Nurse Johnson said that he read “this statement” and then asked her to “sign this paper with me.”

We overrule appellant’s contention relating to the witnessing of the confession.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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