76 S.W.2d 778 | Tex. Crim. App. | 1934
Lead Opinion
The appellant was tried and convicted of the offense of murder, and his punishment assessed at death.
The facts as developed on the trial of the case are in substance as follows: Roy S. Lapham, who lived in a barn near the town of Alvin in Brazoria County, Texas, was found dead in his bed by Floyd Jackson on the morning of December 25, 1933. His head had been crushed with some blunt instrument; an axe with some blood and hair on it was discovered in the room of deceased standing against the wall near the door. The appellant had been seen at the home of deceased on Saturday, December 23, two days prior to the time that the deceased was found dead. Mr. Burnhagen saw the deceased in the town of Alvin on Saturday, December 23, at about 7 P. M. and the deceased at that time exhibited to him a ten dollar bill, but when deceased was found no money was found on his person or in his room. On the night of December 25, 1933, the appellant, in company with another negro boy, appeared at the home of Silas Addison in the city of Houston at about 12 o’clock and told Addison that he had killed a man. On the following morning at about 5:30 A. M. the appellant and his companion again appeared at the home of Silas Addison and asked Addison to go to the home of Benny Addison and see what they wanted him
The issue of whether the purported confession of the appellant was obtained by duress, threats, fear, fraud, coercion or by persuasion or any other improper influence was submitted to the jury under an appropriate instruction and determined, against the appellant’s contention.
The appellant’s first contention is that the verdict of the jury is against the preponderance of the evidence and is not supported by sufficient evidence to warrant his conviction. We have carefully reviewed the statement of facts and are forced to the conclusion that the evidence is sufficient, notwithstanding the fact that the State failed to produce the party as a witness who carried appellant and his companion from Houston to Alvin on the night of December 25, 1933.
By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the State to introduce as ■evidence the purported confession, it being claimed that the warning given to the appellant as stated in the confession was "not in compliance with the statute in that it included more than the statute requires, in this: that the appellant was. advised that he had a right to make a statement, and because the confession was obtained as the result of threats, duress, and violence on the part of the officers. The confession contained all the statutory requirements, and the fact that it contained the additional statement that appellant was advised that he had a right tó make a statement would not destroy its validity as a voluntary confession. All other issues of fact raised by the testimony of appellant were submitted to the jury by the court under appropriate and adequate instructions and were determined adversely to appellant’s, contention.
No reversible error appearing in the record, the judgment is .affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
In his motion for rehearing appellant contends that in refusing to instruct the jury to disregard the testimony of the witness Silas Addison and in receiving in evidence the written confession of the appellant reversible error was committed. The witness Silas Addison was called by the State. He was an uncle of the appellant. His direct and cross-examination, including the written statement made before the trial, embraces thirteen pages in the statement of facts. His testimony was summarized in the original opinion, and a repetition of it is not deemed necessary in this opinion. After the
“My name is Silas Addison. I was on the stand yesterday a while. I have been in the penitentiary. I was sent to the penitentiary in a car theft case.”
Appellant testified in his own behalf but made no statement with reference to whether he knew at the time the trial began that Addison had been a convict. Neither in the statement of facts, in the bills of exception, nor in the motion for new trial is it shown that the date of Addison’s conviction was not known to the appellant at the time of the trial. The record, as now presented, fails to assert as a fact that Addison’s conviction was. prior to the change in the law, which formerly forbid but at. present permits, a convict to give testimony as a witness. See Underwood v. State, 111 Texas Crim. Rep., 124, 12 S. W. (2d) 206. (See especially opinion on motion for rehearing). At the. time Addison testified he was prima facie a competent witness. If in fact his conviction was prior to October 14, 1926, it was incumbent upon the appellant to show it. So far as the record discloses, no inquiry was made of Addison upon the subject, nor did appellant put forth any effort to show that Addison was incompetent to testify. He and Addison were closely related. If Addison was a disqualified witness, the appellant’s relation and intimacy with him apparently would have affected appellant with knowledge on the subject.
The motion for rehearing is overruled.
Overruled.