Ruiz v. State

Court of Criminal Appeals of Texas

Ruiz v. State

257 S.W. 897, 96 Tex. Crim. 459, 1923 Tex. Crim. App. LEXIS 875

CourtCourt of Criminal Appeals of Texas

DecidedNovember 28, 1923

DocketNo. 7866.

StatusPublished

This text of 257 S.W. 897 (Ruiz v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ruiz v. State, 257 S.W. 897, 96 Tex. Crim. 459, 1923 Tex. Crim. App. LEXIS 875 (Tex. 1923).

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Opinions

LATTIMORE, Judge.

Appellant was convicted in the District Court of Jim Wells County of eatle theft, and his punishment fixed at confinement in the penitentiary for a period of two years. This is the second appeal. See 92 Texas Crim. Rep., 73, 242 S. W. Rep., 231.

*460 J. W. Ewell had a bob-tailed red steer running in the Acebo pasture. Appellant lived in said pasture. The animal was seen alive by Mr. Ewell and a man in his employment a few days before the alleged theft. Getting word that a steer had been butchered in the Acebo pasture, Mr. Ewell took some men with him, one of whom was a deputy sheriff, and went down to .investigate. They went by appellant’s home and took him with them. Nothing was said to him about being under arrest and nothing appears in the record reflecting the fact that he even knew said deputy sheriff or of his official character. The party went to a thicket in said pasture adjoining some farm land and began to walk backward and forward through the thicket searching. Mr. Ewell came upon a quantity of meat hanging on trees and ropes, and in the ashes of a fire near by appeared recently burned bones, offal, etc. Upon making this discovery he called out. Appellant was the nearest man to him and came at once to Mr. Ewell. The latter said to appellant, “This is a pretty business," and appellant replied, “Yes, Soda, (that being a nick-name of Mr. Ewell), you have caught me now, I will tell you all, — I killed your steer, I don’t know why I did it, I guess I was crazy; I butchered your steer, I don’t know why I did it; you have always been my friend; you can give me twenty years if you want to, whatever you say is all right." It is also made to appear that the deputy sheriff was near by but we are unable to find anywhere in the statement of facts that he heard this conversation between appellant and Mr. Ewell. Appellant objected to the introduction of the statement made by him and just referred to upon the ground that he was in the custody of the deputy sheriff and.that the statement was not reduced to writing and signed by him under the formalities required by Article 810, C. C. P. As part of his predicate upon which he based this objection he had the officer testify that he suspected appellant as being the guilty party and would not have permitted him to escape had he tried to do so. We find ourselves unable to agree with appellant’s contention. The authorities cited in support thereof do not seem applicable. We think the case directly in line and controlled by the announcement made by us in Phillips v. State, 86 Texas Crim. Rep., 624, 219 S. W. Rep., 454, from which we make the following quotation:

“It is true that the officer testified that he held appellant under suspicion, and would not have permitted him to escape, but it does not appear that he gave any intimation of this state of mind to the appellant. The officer’s intention, unknown to the appellant, would not bring his statements within the rule prohibiting the use of confessions made by one under arrest in the absence of compliance with the statute. Hart v. State, 15 Texas App., 630, 18 S. W. Rep., 207; Williams v. State, 53 Texas Crim. Rep., 3, 108 S. W. Rep., 371; *461 Holmes v. State, 32 Texas Crim. Rep., 361, 23 S. W. Rep., 687; Branch’s Annotated Texas Penal Code, p. 35, Sec. 62.”

There was no error in refusing appellant’s special charge on the law of circumstantial evidence. The confession of the accused took the case out of the rule of circumstantial evidence. Nor was there any error in refusing the appellant’s request for a peremptory charge of not guilty. In addition to the confession referred to, a witness for the State testified that a couple of days prior to the finding of the meat, etc., by Mr. Ewell and his party, witness went with appellant at his request down into said pasture and assisted him in butchering a red bob-tailed steer. The steer described by this witness corresponded in every particular with that lost by Mr. Ewell.

Finding no error in the record, an affirmance will be ordered.

Affirmed.

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LATTIMORE, Judge.

Appellant was convicted in the District Court of Jim Wells County of eatle theft, and his punishment fixed at confinement in the penitentiary for a period of two years. This is the second appeal. See 92 Texas Crim. Rep., 73, 242 S. W. Rep., 231.

*460 J. W. Ewell had a bob-tailed red steer running in the Acebo pasture. Appellant lived in said pasture. The animal was seen alive by Mr. Ewell and a man in his employment a few days before the alleged theft. Getting word that a steer had been butchered in the Acebo pasture, Mr. Ewell took some men with him, one of whom was a deputy sheriff, and went down to .investigate. They went by appellant’s home and took him with them. Nothing was said to him about being under arrest and nothing appears in the record reflecting the fact that he even knew said deputy sheriff or of his official character. The party went to a thicket in said pasture adjoining some farm land and began to walk backward and forward through the thicket searching. Mr. Ewell came upon a quantity of meat hanging on trees and ropes, and in the ashes of a fire near by appeared recently burned bones, offal, etc. Upon making this discovery he called out. Appellant was the nearest man to him and came at once to Mr. Ewell. The latter said to appellant, “This is a pretty business," and appellant replied, “Yes, Soda, (that being a nick-name of Mr. Ewell), you have caught me now, I will tell you all, — I killed your steer, I don’t know why I did it, I guess I was crazy; I butchered your steer, I don’t know why I did it; you have always been my friend; you can give me twenty years if you want to, whatever you say is all right." It is also made to appear that the deputy sheriff was near by but we are unable to find anywhere in the statement of facts that he heard this conversation between appellant and Mr. Ewell. Appellant objected to the introduction of the statement made by him and just referred to upon the ground that he was in the custody of the deputy sheriff and.that the statement was not reduced to writing and signed by him under the formalities required by Article 810, C. C. P. As part of his predicate upon which he based this objection he had the officer testify that he suspected appellant as being the guilty party and would not have permitted him to escape had he tried to do so. We find ourselves unable to agree with appellant’s contention. The authorities cited in support thereof do not seem applicable. We think the case directly in line and controlled by the announcement made by us in Phillips v. State, 86 Texas Crim. Rep., 624, 219 S. W. Rep., 454, from which we make the following quotation:

“It is true that the officer testified that he held appellant under suspicion, and would not have permitted him to escape, but it does not appear that he gave any intimation of this state of mind to the appellant. The officer’s intention, unknown to the appellant, would not bring his statements within the rule prohibiting the use of confessions made by one under arrest in the absence of compliance with the statute. Hart v. State, 15 Texas App., 630, 18 S. W. Rep., 207; Williams v. State, 53 Texas Crim. Rep., 3, 108 S. W. Rep., 371; *461 Holmes v. State, 32 Texas Crim. Rep., 361, 23 S. W. Rep., 687; Branch’s Annotated Texas Penal Code, p. 35, Sec. 62.”

There was no error in refusing appellant’s special charge on the law of circumstantial evidence. The confession of the accused took the case out of the rule of circumstantial evidence. Nor was there any error in refusing the appellant’s request for a peremptory charge of not guilty. In addition to the confession referred to, a witness for the State testified that a couple of days prior to the finding of the meat, etc., by Mr. Ewell and his party, witness went with appellant at his request down into said pasture and assisted him in butchering a red bob-tailed steer. The steer described by this witness corresponded in every particular with that lost by Mr. Ewell.

Finding no error in the record, an affirmance will be ordered.

Affirmed.

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257 S.W. 897, 96 Tex. Crim. 459, 1923 Tex. Crim. App. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruiz-v-state-texcrimapp-1923.

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