104 S.W.2d 42 | Tex. Crim. App. | 1937
— The offense is murder; the punishment, confinement in the penitentiary for life.
Appellant made a confession in which she admitted that she killed her baby immediately after it was born, and buried it in her yard. Omitting the formal parts, the confession reads as follows:
“Thursday night, October 31st, 1935, I gave birth to a baby boy at the home of my grandmother, Dina Summers, in the town of Woodville, Tyler County, Texas. After it was born I immediately took it out thru the kitchen into the back yard; I
The physician who examined the body of the infant testified, in part, as follows: “In examining the body of the infant I found that there was a fracture or crushing over the left ear and left temple of considerable length and breadth. It was a fracture in the skull over the left ear. In my opinion as a physician and surgeon and from the experience that I have had as a physician and surgeon, the wound or fracture of the skull was sufficient to have caused the death of that infant.”
Elizabeth Franklin, a witness for the State, gave testimony sufficient to show that the baby had been born alive.
Appellant did not testify, but introduced witnesses who expressed the opinion that she did not know right from wrong.
It was alleged in the indictment that the infant was killed “by then and there crushing the skull of the said infant child by some means to the grand jurors unknown.” Appellant’s confession was taken on the 6th of November, 1935, and remained in the possession of the district attorney until the grand jury met at the March term, 1936. Referring to the confession, the district attorney testified as follows: “I don’t remember the details of the investigation, but I am quite sure that the grand jury had it. I know that I told them that I had it and if they had requested me to produce it I would have done so. I am morally certain that I did produce it.” One of the grand jurors testified that prior to the return of the indictment the grand jury “tried to ascertain as best they could” the means that were
It is observed that the State failed to offer any proof to rebut the testimony of appellant’s witnesses to the effect that, in their opinion, appellant was insane. The failure in this regard presents a serious question. If such proof was available it would appear that the State should have produced it.
Appellant objected to the charge of the court upon the ground that it failed to advise the jury that she could not be convicted alone upon her confession. While not predicating a reversal on the failure to charge the jury'as requested, we are inclined to think the exception should have been responded to. The sufficiency of the corroboration was for the jury.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.