*1 585 Clarence Collins State Motion for No. Rehearing 33,514. Overruled October January Walsh, by Walsh, Foreman & Houston, William F.
pellant. Briscoe, Attorney, Jr.,
Frank District Robertson, Samuel H. Castles, Charles C. Attorney, Assistants Houston, District Attorney, Austin, Douglas, Leon State’s for the state.
DICE, Judge. murder; punishment, years. is offense companion Morgan (Page
This is a case to v. appellant’s co-indictee, volume), 346 S.W. wherein this
Maggie Morgan, for the was convicted murder Mrs. B. Wilma Selby, deceased, punishment and assessed at death. cases, with
The evidence two adduced the state confession, substantially exception is appellant’s written *2 same, and, fully opinion found sufficient in the set forth and conviction, affirming of penalty this court the death shows that night 16, 1959, killed on the of the deceased was November pistol her two shots fired from a .22 caliber after she entered city proof it in reflects that home the of Houston. The state’s executing part of appellant was fired the fatal shots in his who conspiracy Joseph a into the entered between deceased’s husband Maggie Morgan, Selby, Bounds, appellant, Patra Mae where- money by Selby agreed pay pay sum for the and did a of killing of his wife. confession,
Appellant’s written the officers follow- arrest, ing his introduced in evidence state over the pellant’s objection, in confession he in detail which described conspiracy participation in the to kill the deceased and the his night question. killed her firing of the two which on shots testify in support of Appellant did not but offered evidence illegally the confession was obtained from his contention support of of his defense alibi. him and court, charge, jury to the the issue as submitted voluntary appellant’s of confession and defense to the nature of alibi. must
Appellant’s appeal on is that the conviction contention was in the confession used the state be reversed because Appellant under the of law. insists that admissible as matter presented confession is shown to have been obtained facts 727a, V.A.C.C.P., and the Articles 727 and of violation of sec. of Vernon’s Ann. process of law clauses Art. due Amendment to the Constitution and the 14th Texas Constitution States. of the United surrounding summary of the and circumstances
A facts following: making reflects confession 12, 1959, approximately p.m., 9:80 at December On years age, first taken into appellant, colored man Maggie Morgan in eustody at the home certain officers had been issued his arrest. city No of Houston. warrant and, being police after taken to the station Appellant then very time, jail. questioned placed for a short There is no any questioned in manner the next day. following day, 14th, December he was twenty thirty minutes and made a statement the form given being polygraph appel- After affidavit. examination any charges being lant p.m., was released around 6 without filed against him. January 19, 1960, again
On taken into city his home p.m., in the Houston around without having warrant been issued for his arrest. From his home he Ranger city headquarters was taken in the where he re- approximately midnight. mained until There was no actual at such time. *3 midnight appellant Around was taken the officers from Ranger headquarters Humble, Texas, to miles some ten or twelve away, placed jail being where charged he was after com- plaint justice before a peace under the name Joe Smith vagrancy. offense following (January 20) afternoon three colored officers went to the appellant Ranger Humble and returned to the headquarters Houston, arriving approximately p.m. at 5 Appellant given doughnuts had been coffee and for breakfast upon being Ranger and headquarters returned to declined the food, stating just offer of hamburgers. that he had eaten two being Ranger After headquarters appellant returned to was officers, starting p.m. several at 6:80 Around p.m., (the 9 person Officer Baker to whom the statement intro- made) duced appellant in evidence was talked for 30 to 45 Appellant minutes. then made a statement which was reduced hours, writing period completed over a of two which was midnight. a.m., given appellant around At polygraph 1:25 a lasting eight examination six to Another minutes. examination given a.m., lasting length at 2:05 the same of time. At a.m., proximately again appellant, 3:15 Baker Officer talked appellant at which to the crime. The time confessed statement writing, beginning a.m., completed was reduced to at at 4:30 and a.m., signed appellant 7 which time the same. This statement at evidence, appellant’s objection, over introduced as state’s exhibit No. 22.
588 crime, charges filed were
After confessed to the At against him for his arrest 4:30 a.m. and warrant issued magistrate. a.m., appellant 9 taken before a promises the of- The evidence shows were during him and there ficers their physical upon him or threats same was no violence inflicted during questioning. experts by appellant that he was
Medical testified called mentally intelligence de- low but not so low as to classed as be character, They being weak fective. further described him six, ages and like of three to that found children between the having abnormally low tolerance stress. and fact without a warrant was arrested standing not, magistrate does taken forthwith before State,
alone, Dimery R. 156 Tex. Cr. vitiate v. confession. 534, 197, State, 293; 240 2d Tex. Cr. R. S.W. Golemon v. 157 847, denied, Sup. Ct. 344 73 247 60, 2d certiorari U.S. S.W. 659; 268 Sampson 160 L. v. Tex. Cr. R. Ed. Allen, Nebraska, 55; Gallegos v. 661; 342 U. Brown v. S. 156; 443; New York, Lyons U. v. Okla S. Stein v. S. U. Burke, homa, 596; Townsend 334 U. S. U. S. California, will be 181. Before confession Stroble v. U. S. be causal connection must held a reason a inadmissible for such and take between the failure to secure warrant shown *4 securing the magistrate the of a and accused forthwith before present showing in the case. confession. There is such accused, Nebraska, supra, a Mexican farm Gallegos the In v. Paso, Texas, request the the hand, in El at of was arrested Immigration Naturalization Service and book- United States and days later, custody in charge vagrancy. while of Four ed on Texas, in he murder committed in confessed to of the officers custody eight days’ Texas, in he After the of Nebraska. State Nebraska, where, upon of the officers to the State was taken signed to and a second confession questioning he made further magistrate not taken The was before the crime. accused making prior the and in to confessions Texas or Nebraska either days was after he returned to Nebraska was not until fifteen it magistrate. Upon the brought his trial for before a that he was Nebraska, both confessions were introduced in crime the State States, up- the Supreme Count of United The in evidence. manslaughter, conviction, held that under the holding the facts and take the accused before circumstances the failure to magistrate prior not time made the confessions did he process. constitute a denial of due and appellant fact that was carried to the Humble
incarcerated under an not within itself assumed name would any vitiate proof There is entire confession. an absence appellant that confined of the fact that he was aware jail under practice such a name. While we do not condone having suspect placed out-of-city jail under a name an other own, interrogated than his he while under since was not confinement, totality in this we do not view of the facts deprivation case as a process. Nor the fact that due does pellant questioned Ranger headquarters at the in Houston vitiate, rather headquarters, than police at the courthouse or itself, explained by within the confession. Such action was stating they Ranger officers in appellant the reason took that headquarters they investigation kept was that wanted their suspects secret from the other in the case. appellant given fact prior that a lie detector test
making the confession did not render inadmissible. same Gasway State, 942, and 157 Tex. Cr. R. 2d State, Webb v. Cr. R. 331. Tex. S.W. 2d The evidence does not show that an illiterate. He is grade stated his confession that he low twelfth went school. grade. brother that His testified he went to low fifth mentally Both doctors called he stated that defective. subject
It is held that of a ar- “mere while under or rest or prohibited is not either the common law process.” due Golemon v. Tex. R. 247 S.W. Cr. agree 119. We are unable to length an unreasonable of time.
Appellant right was not denied the consultation with attorney any family, member as there is no evidence any request he to see or to consult with whatsoever that any anyone. anyone requested is Nor there *5 of privilege seeing him. denied the by Supreme of considered the decisions the Court We have by appellant, United cited which were States confessions illegally of proc- obtained in violation the due held have been 590 of
ess clause 14th Amendment Federal Constitution. If this court is convinced that confession is inadmissible holdings Supreme of the matter law under the Court States, Stickney United we do v. not hesitate so hold. 533, Texas R. 133. 169 Cr. 336 S.W. 2d have on all None the cases cited facts and circumstances and, they present opinion, are with in the our fours those case controlling. not here 1801, Indiana, 49,
In L. confes- Watts v. 338 U.S. 93 Ed. unrelenting from after an interro- sion was obtained the accused officers, by relays, nights, gation five with for the accused opportunity sleep and no for accorded for decent allowance presented present No such facts are case. food. 315, 1265, York, Spano In Ed. 2d v. New 360 U. S. 3 L. hours, de- questioned eight during time accused was which re- false ception practiced upon him of certain virtue Also, presentations request an to see make an officer. attorney was denied. Florida, 227, 84 L. S.
The confession Chambers.v. U. 716, following all-night session Ed. was made the accused days. period over of five after continued Texas, 1663, 547, In 316 U. S. 86 L. Ed. Ward v. State county away another 100 miles accused removed to during days county county, time from which three was driven continually threats the officers and told of he was of mob violence. 224, Haley Ohio, L. the accused
In Ed. v. 332 U. S. young boy years age. awas fifteen 1541; the ac- Pate, Sup. 2d Reck Ct. L. Ed. In being ques- years cused, age, to the crime after confessed during time day days, for four which tioned six seven hours night adequate became ill on the before he without food and also denied the of the accused was he confessed. father right to see-him. Connecticut, 1860; 6 L. 81 Ct. Ed. S.
In Culombe v. por- nights four and the substantial the accused mentally days defec- he confessed. He was five before tion of *6 being questioned to see tive. While he stated that he wanted lawyer give help attempt him the but officers made no to by get During period he needed to one. he was confronted wife, by officers, who, pre-arrangement his asked him with the accompanied to tell the truth. two of accused’s She was children, family up- to be and the scene with caused him to his set. agree presented,
Under the we are record unable that illegally appel- confession is shown to been from have obtained process lant violation of the due clauses our State Constitutions, Federal and that the same was inadmissible evidence as a matter of law.
Finding support the evidence sufficient the conviction and appearing, judgment no reversible error is affirmed.
Opinion approved the Court.
ON MOTION FOR REHEARING BELCHER, Judge.
Appellant now contends for the on appeal first time that the give trial court refusing specially erred in requested charge his respond objections toor to his jury for its failure to instruct the that, determining whether his written statement volun- tary, they must also decide whether the statement was made persuasion. without give appellant’s requested court also refused instruc-
tion which was as follows: ‘persuasion’
“You are instructed that the word as used in charge, ordinary meaning this its influencing has the mind arguments means of and reasons.” reversal, holding For relies on the in Odis v. State, 345 2d 529. An examination of the Odis case shows behalf, testimony that he testified his own and his raised issue of whether his written statement was made without com- persuasion. Therefore, pulsion or the refusal of the court to jury they instruct could consider the written state- they ment unless found that it was compulsion made without prejudicial rights persuasion was to and called for a reversal. testify this A did not case. re-examination persuasion of the record does not show that the issue of except raised “tell told to *7 type truth”. This admonition which is not of inducement State, rejection would require a confession. Smith v. S.W. 265. court, jury charging voluntary in nature of on
appellant’s confession, legal written included certain standards determining consideration, admissibility and its and charge part in reads as follows: you you
“If or believe from the if have a reasonable evidence free- thereof not purported doubt that said statement was ly voluntarily signed defendant, or that made and coercion, compulsion or force same was as result of you physical mental, either then will not consider said any purpose statement for whatsoever.” requested charge, any refusal of the in the absence raising ob- evidence the issue that the written statement Mc- persuasion, presents tained from the no error. 240., Craw v. infer, original In con- opinion, not as it was intended by appellant, interrogated while that was not strued It is under a name than his own. true other pellant interrogated Ranger Headquarters he had after name, jail placed been under such but stated in Humble original opinion, interrogated under con- he while jail. again the of- finement in the Humble It is concluded other placing appellant under name ficers’ action facts, totality not, con- than of the of the his own view does deprivation process. stitute a of due holding original opinion that in the Appellant attacks failure connection “between the there of causal before a accused forthwith warrant and take the to secure a securing magistrate the confession.” and the that there sustains the conclusion A of the evidence review showing arrest and causal connection between the was no magistrate making of and the appellant before a to take failure the written statement. rehearing
The motion for is overruled.
Opinion approved the Court. Crayton
Fonda v. State 33,724. No. November January Rehearing Motion Overruled *8 Hall, Littlefield, Bill appellant» Douglas, Attorney, Austin,
Leon State’s for the state.
BELCHER, Judge. transporting whisky The conviction is for vodka in dry prior area with a conviction an offense of a like character alleged enhancement; punishment, days and a fine $1000. County dry area,
Proof offered that Lamb was a and the alleged prior Further, properly conviction shown.
pellant, testifying, while admitted that he had been so convicted.