*1 аre did look back. Under this circumstance we un- he nost support jury’s to find in the for able verdict. insufficiency judgment of the evidence the Because trial court is reversed the cause is remanded. v. State. Darious Golemon 1952. 25,504. January No. Rehearing 1952. February Denied (Without Rehearing Denied Motion Second. Opinion) 2, 1952. April Written Court of the United by Supreme Denied Writ Certiorari States October *2 Judge Presiding. Hon. Matthews, P. C.
Pliny Myers, V. Fuller, Houston, and Brann appellant. George P. Blackburn, Attorney, Austin, State’s for the state. DAVIDSON, Judge. appeal In a growing former of the case out of this transac
tion, judgment prosecution was reversed and the ordered (155 dismissed Rep. 81, Texas Crim. 816). S. W. 2d A presented new indictment was in the district court of County, Texas, Hardin appellant day June, on the 1950, charging 28th Cloyce malicious murder of Eloise Twitchell. Upon motion, the court’s the veune of the case was transferred to the court district of Chambers Texas. Subsequently, upon the venue was court’s own motion transferred to the Liberty County, Texas, district court of resulting where trial was had appellant’s conviction, with the death penalty as- sessed. finding touching body
A the facts statement companion is set forth in the case Leviness v. of deceased decided, 25,390, day (page volume), this No. this repeated. and will not be here appeal receipt upon contention relates
The chief objection confession over his voluntarily fear, frеely and made but was the result of arresting coercion, physical abuse administered offi- having custody, him in failure of the cers and those magis- arresting carry appellant promptly officers before appellant contends trate —all of which' rendered the confession the statute evidence under law of this state and inadmissible State and the due clauses of our Federal Constitutions. *3 charged in one of a The use with crime process. due сoerced or forced confession constitutes a denial of Supreme The later decisions of the attesting Court of the United States State, are in 155 Tex. the rule set forth Prince v. Cr. repeated. Rep. 108, 419, 231 2d will In de- S. W. and here be termining particular if denial of due has occurred in the mentioned, Supreme of Court the United States arrives at by independent a conclusion an and examination of from the undisputed facts.
This
has not
to
un-
court
hesitated
reverse
where the
cases
disputed facts show a forced or coerced
Abston v.
confession.
State,
Rep. 152,
428;
136 Tex.
102
Cr.
S.
2d
Blackshear v.
W.
State,
Sigler
557,
960;
130 Tex. Cr. R.
2d
95 S. W.
v.
167,
Rep.
139 Tex. Cr.
The difference in the a determination to question each of the courts lies in fact this agree force, coercion, court does not involuntariness and are prompted shown some of the fact situations which have Supreme Court of the United States to conclude to the contrary. Texas, 530, 1032, White v. 310 U. S. 60 S. Ct. 84 1342; Texas, L. Ed. Lomax v. 313 U. S. 61 S. Ct. 85 1511; Texas, L. Ed. Ward v. 316 U. S. 62 S. Ct. L. Ed. 1663. apparent, determining
It therefore, the admissi- bility of a confession claimed be inadmissible because it was involuntary, forced and court must first determine what Supreme we think the Court the United States would con- undisputed facts. independent examination of the from an elude reaching governed only yardstick which we are be The is, necessity, the several an examination of such conclusion that court exprеssed in the decisions fact situations as upon predicated which the conclusion was hesi- court has not was or was not in evidence. This admissible controlling giving to the hold- effect tated in deference due ings have Supreme where we of the United States Court State, supra. holdings applicable. Prince deemed those reach we are to here Such are conditions under which a conclusion. touching undisputed arrest
The facts making appear of the confession to be: September 28, The fixed murder was time for the deceased, was, decomposed body female, on October a white 4, 1948, “pretty known as found in area thicket” dense Big “the of June Thicket.” About one o’clock in the afternoon 28, 1949, Texas, Hempstead, arrested without at Klavenhagen arrest, by Ranger warrant of Kern and Sheriff Houston, immediately ap- County. placed of pellant Harris The officers Kountze, an automobile and started with him to county body county seat of Hardin in which began questioning appel- of deceased had been found. The officers “Frog,” lant and him ascertained from information that one *4 Leviness, alleged implicated was with him in murder. the With they go by peni- this information decided to drive the or state tentiary investigate penitentiary at records Huntsville to the arriving appel- appellant. Upon as to Leviness and at Huntsville placed a penitentiary, lant was remained for the where he records, comple- few hours while officers checked at the the the appellant placed tion of which was taken and there to Kountze jail day about dark the of of his arrest. officers, custody placing appellant jail The after and in the Orange, Texas, of the sheriff of Hardin set out for they officers, Leviness, where re- arrested Leviness. The midnight night turned of June to Kountze about brought Appellаnt thereupon and Leviness were into what Lindsey’s jail ques- parlor” referred to as at the for “Sheriff tioning. Leviness, other, presence
Appellant each were in the of daylight the next morn- questioned “about the officers until During question- ing,” signed appellant a statement. the when Rangers including ing, peace present, Texas officers were two six statement, referred to as will be and three This which sheriffs. statement, offered in evidence. first was not Following statement, appellant signing of the first to search Leviness were carried the scene of the homicide gun appellant appears for the which in the course stated have questioning by of his had in the the officers been used homicide. Appellant place showed the he said he had officers where gun, Appellant hidden the but it could not at that time found. alleged Beaumont, was then carried to where he to have purchased gun pawn shoр. shop keeper a pawn at a could having identify appellant gun purchased from him a but produce showing identify purchase did that he a record gun using a person had sold to a a than name other that of the appellant, appellant having advised or at the the officers before making using that, time of the of a the statement fictitious name, purchased gun place he had a at a in Beaumont. Proof comparison a handwriting wаs introduced which tended appellant signed purchase to show that had in fact record gun pistol. and received morning pistol,
After futile search for the on the of June July officers sent to Houston for a detector. On mine gun detector, and with the aid of mine was found corresponded which purchased which had been at the pawn shop by appellant and described in his answers to the questioning of the officers. July making
On about week after first state- Hightowеr, attorney, ment. prosecuting the then went jail purpose, says, interviewing he and Levi- ness, alleged co-actor, his and talk them over with the state- they ments or confessions had theretofore in view hav- made ing verify them said pur- statements. In furtherance of this pose, Hightower brought had both and Leviness from jail prose- presence into the and there sheriff’s office *5 cuting attorneys peace and officers—at least of whom was one present whеn the appellant first statement was and Levi- made — questioned, ness them, were with first in the statement before presence. given instances, each other’s In answers several the were challenged by verified or the other. interview, statement a second expiration of At the statement the appellant, was which made was confession in this note well to It is case. in this in evidence introduced second Hightower testified
connection in changes contained from those material contained statement changes record were the those what Just the first statement. testimony, Hightower’s as well According to not reflect. does or confession witnesses, statement the second that of other as compliance the voluntarily and made freely and P. C. C. provisions of Art. confes- here set out the purpose to useful
It would serve no say that it sufficient to It in evidence. introduced sion as charged, which guilty withоut of the offense showed would support the conviction sufficiency state’s case of the the doubtful. behalf, chal- testifying own Appellant, witness his as lenged and testified that coercion, the voluntariness the physi- threats, fear, only and a result was made as arresting those officers and cal violence administered custody. who had him in having implicated admin-
All the officers whom coercion physical and violence as well as threats istered assеrting testimony denying appellant’s testified and freely voluntarily made. confessions were state, precedent in this with established accordance disputed fact jury issues of trial court submitted touching instructed the the voluntariness of the confession jury they doubt as if a reasonable effect that entertained voluntarily freely made to to whether the confession was acquit appellant. finding jury the confes- verdict constitutes voluntarily law with the statute
sion was made in accordance (Art. 727, P.) of this state. C. C. and threats physical accusation of violence officers, being disputed, here considered' is therefore to be determining admissibility of the confession. ap- questioning
It is insisted that the acts officers in pellant manner, length place, admitted and for of time
540 night carrying
by them, into well at as as that of body disposition and to the of de- woods scene of ceased, them, admitted rendered involun- as the confession tаry process. use in a violation of due its evidence prior confession
It is well established that when a of an influences, improper accused is obtained as result of subse- quent only appear is made confessions will received when it be obtaining improper first that influences exercised in making did confession subsequent not enter into or influence of the State, 399, confession. Holt v. 151 Tex. Cr. R. 208 643, S. W. 2d authorities there cited. connection, ques-
In
be
the merе
must
remembered that
tioning
suspect
custody
aof
under
while
arrest or in
is not
prohibited by
Lyons
process.
either the common law or due
v.
Oklahoma,
596,
1208,
1481;
322 U. S.
64 S. Ct.
88 L. Ed.
Lisenba
California,
219,
280,
314
62
U. S.
S. Ct.
To process invalidate confession as of due violation showing there exist must facts more than the confession questioning by was the result the officers. Supreme familiar
We are
with the decisions of the
Court of
holding
the United States
used in
inadmissible confessions
ob-
taining
convictions
the state courts.
need not
here
These
set forth or discussed in detail. It is deemed
for instant
sufficient
purposes
say
of those
we find
none
cases do
ex-
pression or conclusion that
lead
conclude
would
us to
that said
against
court
appellant
hold
would
use
the instant confession
process.
constituted a violation of due
Newman v.
Tex.
Cr. R.
2d
187 S. W.
respects
we find facts similar in some
are here
these which
presented. At least we are unable to
conсlude
instant
go any
invalidating
facts
further
toward
the confession as
due
violative of
than those shown in the Newman case.
against
We affirmed the Newman
case
the contention that
involuntary.
Supreme
the confession was
Court of the United
States denied a writ
of certiorari
in that case. 326 U. S.
66 S. Ct.
We are constrained to conclude that the instant facts do authorize conclusion this court that the use constitutes a violation the United States Supreme Court process, or that due contrary. hold would *7 expressed, test just we next Having conclusion the reached decisions under law the admissibility the of this state. P., 727a, sustain C.C.
Appellant Arts. 217 and insists articles read as follows: his contention. The making chapter, person the in this “In enumerated each case person before immediately arrested the take the arrest shall arrest, the magistrate before may the or have ordered the who an magistrate without made where the arrest was nearest order.” viola- person in by an officer or other
“No evidence obtained
the State
any provisions
laws of
tion of
or
of
Constitution
America,
Texas,
of
or
States
of the Constitution of
United
the trial
shall
the accused on
be admitted in evidence
any
criminal case.”
Appellant
support
contention the so-called
cites in
of his
819,
(McNabb
S.,
332,
McNabb
87 L. Ed.
rule
v.
318
S.
U.
U.
608) holding
63 S. Ct.
a
if made
“that
confession is inadmissible
during illegal
carry
promptly
a
detention due
failure
to
to
prisoner
committing magistrate,
not the
before a
whether or
torture, physical
psychologi-
‘confession is the
result of
”
410,
Upshaw
States,
cal . . .’
93 L. Ed.
v. United
335 U. S.
100,
we apply refused to so-called McNabb rule trials carry to in this state and there held that in order for the failure to an magistrate (as required by 217, accused before a Art. C. P.)C. to necessary invalidatе a confession it was there failure, manner, shown that such caused or contributed some bring about the fail find confession. We fact inapplicable instant case that would render rule announced Dimery case. carry appellant It is further insisted that the failure to be- magistrate state, fore a constituted violation of the law of this and therefore rendered the confession inadmissible under the provisions 727a, P., support of Art. and in C. C. this conten- Colley tion cites 143 Tex. Cr. R. S. 2d wherein we held that a W. confession was inadmis- undisputed having sible where facts showed the officers in custody guilty violating C., accused Art. were P. prohibiting physical pain upon the infliction of or mental prisoner to secure confession. conclusion was reached not- withstanding that, confession, the fact aas result of the facts guilt were found be true which conduced to establish accused, provided Art. P. C. C.
We aware are of no statute mаkes it violation of the is, a law —that per- criminal offense —for fail an officer to to duty imposed by form P., carry Art. C. to ar- C. one magistrate. apparent rested without warrant before It is Colley application rule announced in the case has no here. (cid:127) Finally, apparent it is from this record that com- officers, during questioning, conducing municated to the facts guilt incorporated establish his which were the first state- ment, pistol aas result of which usеd in the murder was express provisions P., discovered. Under the of Art. C. C. the first well as as the second confession was admissible in evi- against appellant. dence
It follows that use in evidence of the in this by case was authorized and warranted law of statute state, disposition thereon, and the we make without rests refer- ence to of due law.
Appellant’s ownership and connection and the use made pistol by fully found the officers were shown in the con- Appellant’s independent objection receipt fession. in evidence proof of thereby untenable, such rendered the same because properly is, facts were in evidence from another source —that the confession. change exception from Hardin of venue
County upon County to Chambers was rendered without merit County to Lib- change from Chambers subsequent of venue erty County. would warrant reflect
The record fails to in re- discretiоn court his trial abused the conclusion that error change Liberty and no fusing from venue thereby. is shown judgment is affirmed. appearing,
No reversible error approved Opinion by the court. rehearing.
ON motion for MORRISON, Judge. original holding urges in the Appellant our us to reconsider Rights
light 9-19, of the Con- of Bill of of Article Section This, we have done. stitution Texas. now, it, that, principal since
His we contention see original Hempstead a war- arrest of was without Golemon rant, imрrisonment, as denounced the same false constituted that, Code, our Penal confession was secured since the falsely imprisoned, in- while the same became was so P., 727a, in- Article which makes admissible C. C. virtue admissible evidence obtained violation means Constitution laws of Texas or the Constitution the United States. *9 analysis
An contention an examination of this involves guaranteed law, what we consider due as is both and our State Federal Constitutions. inadmissible,
In be order to the we must hold confession convinced from that the to the record the failure of officers arresting itself, Golemon, secure a in contributed warrant before way securing is, in some to That we must confession. their convinced there was a connection between that causal securing failure to secure of the confession. a warrant Dimery (2d) 155 Tex. Cr. R. 240 W. 293. S. custody in
The mere that the officers their fact had enough. shown their failure se- is It must be that to have taking custody materially a cured warrant so him into before appellant’s prejudice. altered the situation to We must ask our- selves, they been if “Would situation have different would, had first secured a warrant?” If we find that it then the goes question out connec- of the case. This of causal easily practically tion is in force is answered cases where securing There, used officers in we conclude confession. forthcoming had confession would not have been certainly But, here, not been for coercion. it would seem hypercritical say to the mere failure to have warrant being in their hands was An cause of the confession made. certainly brutality, exposed accused knows when he is to but necessarily he does not know whether or not an officer has By warrant imagination him for when he arrested. stretch of the what say non-possession could we of a warrant arresting standing in the alonе, actually, hands in itself officer brought a compelling constituted force which its influence thereby to bear on the mind became a causal bringing factor in about a confession?
We conclude the officer’s failure to have a warrant appellant’s securing arrest nowise contributed to the confession. undisputed next contention facts here- is that the bring expressed Texas, this case within the rule in Ward v.
144 Tex. R. Cr. 316 U. 86 L. S. Ed. We will endeavor order to discuss the fаcts in each case in if to determine contention In is well taken. the Ward case, County, the of- accused was arrested in Titus where committed, there, fense had been and taken the officers from County, County, Camp east to then Morris then southwest County, Upshur County, south to then then southwest to Smith getting County, southwest all farther Henderson the time away from coun- where the offense committed. At had been each seat, ty placed jail. he was bar, appellаnt County case at was arrested Waller and, there, County, from taken his northwest Walker where checked, criminal record was and then to Hardin southeast getting place all the time where nearer the offense was committed. *10 case,
In the Ward the movements described above consumed night following Tuesday the time Friday from after- until the noon. according bar, consumed,
In the case at the movement appellant, approximately three and one-half hours. case,
In the at the end of this Ward the confession obtained strange another, days movement from one town to and three questioning, upon by relied make out case. was the state to its bar, by appellant In the case at confession was made morning following County, and, his arrival Hardin immedi- ately thereafter, complaint charging him with murder was filed, Appellant and a warrant contends his arrest issued. physically officers, by he was mistreated which cаused sign confession, by him to all of which denied those custody. had who him in But this was not introduced in evidence. later, appellant by A week at- was interviewed the district torney upon by and made the confession which was relied Appellant claim, state dence, this case. does not nor is there evi- any way during that he was in mistreated week fol- lowing taking taking first confession and the only second. The appellant claim of mistreatment or coercion levеled that, immediately this second confession is prior made, to the time the same was the sheriff threatened to repeat the mistreatment of a week This was denied before. and, being against appellant by jury’s the sheriff resolved verdict, passed charging complaint out of the A case. approximately
with murder had filed been week before this made, and, according appellant, confession was the district attorney friendly who took it “treated him nice” and “talked in a way my family.” about undisputed
We remain convinced that evidence does not subject reflect that objection the confession used evidence was appellant. leveled
Appellant changing complains action of the court County Liberty County. the venue from Chambers upon predicated The basis of his contention seems to one “Frog sentence contained in follows: confession as myself Texas,” plаnned Hull, had Hull to rob the bank at Liberty County. which is in
Appellant any way prejudice has shown in that a existed
546 actually Liberty County prejudice a him in such jury way jury tried the ac- found its into box appears shown. cused. No error until this has been Jones v. State, 248, (2d) 156 Tex. R. 240 771. Cr. S. W. grows complaint of the fact that letter last out comparison jail him in for
written was used as basis bought pistol pawn shop used the records of the where he in the murder under name. a fictitious Ferguson State, 61 Tex. R. Cr. S. W. signed aсcused, appearance under held an while we bond might any arrest and without used for notice be bond, might purpose other than used as a for basis handwriting Ferguson comparison. The case would authorize admissibility of the evidence herein. It will be noted incriminatory. the letter itself Jones v. See Rep. 475, (2d) Tex. Cr. 243 S. W. 848.
Remaining disposed properly convinced that we of this cause originally, appellant’s rehearing motion for is overruled.
Arthur Green v. State. 25,902. No. June 1952. Rehearing Denied October Reed, Judge Presiding. Hon. Louis B. Outlaw, Post,
N. appellant. C. George Blackburn, Attorney, Austin, P. for the state. State’s