*1 language, where the using prosecution for abusive the occasion he not swear on did in his own defense testified charged, life, the state sworn in he had never profane rebuttal, appellant had used prove, permitted occasion. presence on another language other witnesses conviction, Judge affirming said: Davidson In legitimate evidence. If rebuttal think this was “We swore, would never that he not before the testified having inadmissible; placed that matter but have been legitimate subject rebuttal evidence jury, it became the Testimony may other times. be- he sworn at show that so, by not reason of otherwise be come material original testimony, put opposite side. As facts do testimony would have of the Jones witnesses not believe the legitimate; positively he but stated any time, legitimate prove never swore at it was profane language did use than mentioned at other times legitimate prove pleaded information. that he It also guilty cursing day, said for the Jones on reasons above stated.” exception complains
Bill of not No. the court did charge given testimony. on the effect to certain have be To done charge weight so would have constituted a the evi- improper. dence and hence exception objects
Bill sufficiency evi- No. 3 presented exception. dence and need have been in a bill of Finding error, judgment no reversible trial court is affirmed.
Alex Leviness v. State. January 25390. 1952. Rehearing 27,1950. February Denied Appellant’s (Without Rehearing Second Motion for Denied Opinion) April Written *2 Matthews, Judge Presiding. P. Hon. C. Thompson, Silsbee, appellant.
Houston for George Blackburn, P. Attorney, Austin, State’s state. Judge. WOODLEY, Cloyce was convicted for Eloise punishment
Twitchell and the
assessed his
confinement
penitentiary
for life.
trial
County upon
The
had in
was
Chambers
an indictment
changed
County,
returned
Hardin
the venue
following the
penalty
reversal of a death
conviction
Hardin
County.
24,688,
See
Leviness v.
28, 1948, to Colmesneil, return to her Texas, mother’s home in being year her where gone three old child was cared for. She apartment occupied Beaumont and rented an be family upon approaching her her scheduled return sea-faring traveling of her gray husband. was in her She col- ored Kaiser automobile. description of similar driver of a Kaiser car
A drove pick up Beaumont. She men on the outskirts of seen to two passed highway away them Colmesneil on a toward she missing reported when through Hardin and was failed reach home. Hardin days later, 4, 1948, on October section Several Thicket,” “Big
County composing part known as the the area proved to be badly decomposed body found which a body Twitchell, deceased. of Mrs. on found Harris
The Kaiser automobile day Beaumont. Mrs. Twitchell left afternoon investigating crime, received months later Some *3 implicating information from one Darious Golemon Texas, Orange, apprehended in murder. the was of night party 10 o’clock on the of June about state consisting two officers rangers Kern of Harris Sheriff Orange, follow- police and and assistant chief of the. ing his return Hardin and a to scene to visit crime, following morning, a confession about 8:30 the appellant, objection which was received in reading over the evidence part as follows: “* * * was September, In I believe this the month of along myself came September, the last of and Darious Golemon Beaumont, Texas, Odessa, Texas, from where we both days. working. just stayed one two We in Beaumont or bought myself .38 Beaumont, While we were Golemon and pistol second Shop from This a Pawn on Street. was a Crockett gun gun hand and I paid cost and Golemon on this $25.00. $10.00 pull paid planned Beaumont, Texas, and We to leave $15.00. myself hitch- job. some kind of a and left Beaumont Golemon hiking. going road. A North out the Eleventh Street good ways traveling by out driv- of town a woman herself and ing Gray stopped picked up. Kaiser and us ask Sedan She going going us where we were and Golemon told her we were up Kountze, lady on the other Texas. This told us that side Colmesneil, young she lived Texas. told us that she had a She baby baby this was at Colmesneil with mother. her She also told her seaman us that husband and was out trip. aon She said that she had been and rented to Beaumont a riding expecting shortly. house as she was her husband I was back right and middle Golemon side. When got Kountze, lady we on the other told side of this got car stop us out a side road. Golemon out of and at let got got and then back in the seat then out. Golemon front and lady pistol then pulled the on this and told her to move over. He go driving this around car. I started me to and drive the told got Honey Island road we car and when turned to the through Honey and Island left went and came on Kountze-Saratoga right road. We on road turned again right went and short distance and then turned aon dirt road that went back into the woods. down We went yards road stopped hundred and about one the car. allWe got looking place three then out of car and started for a kept turn lady around. While we were out of the car telling gun put up Golemon to and would feel a lot she again better. She him baby told that she had a mother go Colmesneil us to ahead and take the car let go. her twice, About this lady time Golemon shot shot this one hitting higher up, her in the stomach and the other little one a probably gun snapped the chest. The and this started walking got toward Golemon. When she reach within he started hitting pistol. her over head hit her several He finally times and she went He then help down. told me him carry get her over the woods and picked her off road. I up her picked head and up shoulders and he her feet and we yards twenty thirty carried her about off of this road into the woods. When we laid her down Golemon noticed she breathing eyes still open. and had her He hit her pistol pieces. with the and the took broke into thenWe *4 lady up. several and limbs covered this I walked back the through just and car Golemon went few out the brush and in a I minutes met him back the car. He told he had washed me pistol. his hands and that had he buried the I told him that pennies purse just had shook the ladies and a that there was few purse. got and nickles the then and We into ladies car the * * * drove to we Houston. On near the Humble road Houston passed passed Shortly Golemons sisters house. after Gole- right. mon’s sister’s this house we turned to the went down We road about two miles and crossed over railroad tracks. Right passed after we these railroad the tracks we turned to ways and a parked Gray left drove short and car. Kaiser There was a radio and some left. clothes this car which we through walked We some woods over the tracks back railroad and while crap. we were in the woods we both took a I used a * * * myself scarf that was in this ladies car to clean with. We walked house, to Golemon’s sister’s which was about two miles bloody. night. My and Golemon’s were spent clothes also and *” * * yard. back sister’s these clothes Golemon’s burned appeal Prince v. is ruled insists that (2) 419, cited and the authorities Tex. R. S.W. coerced,
therein, undisputed facts here show law, not- forced, involuntary confession matter of and as voluntarily finding withstanding jury that it admitting the made. He that the court’s contends rights deprived under the 14th written him confession of his States, referred Amendment of the United Constitution process as the due clause. Harris the court Sheriff Kern testified before appre- before the to the effect that at the time hending Orange appellant had taken he believed that if he magistrate detaining appellant, that the time to find a fled; went with have appel- willingly; they Kountze that as toward started appel murder; lant admitted involved in the that he was thing lant and said wanted to take for the whole the blame out, pine he used a and told knot to beat the deceased’s brains officers that he would the scene of the take them to “Big he all that Thicket” and show them and tell them it, there; ques- knew about and he them took tioning regard- appellant spoke penitentiary of the fellow, code ing telling reason he did not be- other lieve killed deceased with confession that he pine knot. Lindsey, Sheriff the written of Hardin testified that proper voluntarily confession after made and warning given; ex- had been that at his instance two doctors signed, amined Golemon after the confessions clothing removed; in the course of which examination their that he took to the scene where the found, appellant pointed place nearby where out gun; bury said Golemon went out to in the direction pointed by appellant but and location was located only diligent detector. after a search with aid of mine *5 gun The broken was found buried in an armadillo hole. proved pistol The one sold serial number to be the Specter’s Septem- Sam store on in Beaumont on Crockett Street 27th, by place pointed ber which store was as the shop” “pawn where he and to in as the referred his statement pistol, planning acquired leave Beaumont job.” “pull some kind of a Klevenhagen referring pistol, Ranger testi- Further fied: *
“* * gun confession was had not found when this had, taken, and made that no one else as I know. He far as it he had killed this statement like is. Earlier said he had gave pine knot, gun. Leviness with a and I had not found the satisfactory why pine first, me a knot answer as to he said weapon told used. He told me he then me the kind of that he there, everyone present in front and he stood that was representation. actually on that He told me used. gun In obedience to what me we found it.” he told about the by oral The confession testified without the officers objection, and all denied character witnesses that there was of abuse or mistreatment and testified that voluntary. Appellant testify. did not Under facts we find no error trial admitting submitting court the written confession and voluntarily the issue as to its as made required by appellant’s our statutes. therefore con- overrule rights tention that denial constitutional is shown or upon that the applicable authorities relied are to the facts here. We further overrule state- contention that ment of is insufficient to connect him with the principal. agreement purchase pistol, as “pull together job,” leave Beaumont and some kind of a driving his acts connection with dis- car and the position of agreement an show intent and to commit robbery or pistol, other crime with such if not commit A conspiracy murder. firearms commit such crimes with include and embrace murder committed one of the co-conspirators carrying enterprise. unlawful out such See State, v. 574; Hemphill Garcia (2) 151 Tex. R. 210 S.W. State, 64; 133 Tex. (2) Cr. R. Wall v. S.W. S.W. agree Nor do we that the statement of be con- can indicating strued as that he acted under duress *6 166 though disposing body, Golemon told he said
car and in do. him what concealing in acts away to con- from the scene alone be sufficient endeavoring principal murder, secure in him a to the
stitute in his safety companion such crime who committed his (2) State, presence. R. 228 SW 154 Tex. Cr. See White v. 165. conviction, being sustain the
The evidence sufficient to judgment appearing, no error is affirmed. approved
Opinion by the court.
ON FOR REHEARING. MOTION Judge. MORRISON, original challenged opinion capably very has our re-urges deprived of “due
herein. process contention he was He his guaranteed by Amendment of of law” to him the 14th per- when trial court Constitution of the United States appellant’s confession. the introduction into evidence of mitted outset, testify, At nor did we observe that did not this, From it follows offer witnesses his behalf. must have from shown the state’s witnesses that denounced manner heretofore secured Supreme this court or the Court of the States United support order contention. observe, Supreme opinion from Court the recent Gallegos Nebraska, Ed., ad 96 of the United L. States v. opinion page 88, v.
vance sheet the rule in McNabb at States, is United 318 U. a confession S. the effect that illegal detention, if made due inadmissible to failure promptly carry committing magistrate, prisoner before apply does to trials state courts. torture, showing bay,
In the case since there was no relegated complaint physical psychological, appellant taken that he was arrested was not without warrant magistrate forthwith. adversely This contention seems to have decided State, opinion Dimery Tex. v. in our recent 25,504, R. S. W. Goleman day decided. *7 case, somewhere
In the was arrested instant evening, between 9:00 and 10:30 in the and the following morning approximately is 8:30. There showing any brutality upon accused, no and the fact interrogation, participated several time, one of them went out for coffee from time to does not relays. questioned itself alone show that It is bring obvious that these facts do not within the themselves Prince (2d) 231 S. W. questioning period days, where the covered a of three expressed under the rule of the cases cited therein. shortly
The fact made an oral confession being apprehended voluntary after lends corroboration to the confession, nature of the written to the introduction of which objects, just plea now “guilty” as did the at the preliminary hearing Gallegos Supreme case in the Court of the United States.
Appellant takes us to task for some of the statements of original opinion. analysis found in opinion fact our An of the will reveal complained each of the statements of were quotes testimony from the stating of the facts witnesses. In case, of a conclusions, dowe not draw our own but attribute gave them to the witness who them at the trial. contends that he shown is not to have principal says the murder of Mrs. Twitchell original opinion
cases cited in support our do conclusion. our discussing them, Without pool we here hold men that where two buy funds pistol, planning “pull their job,” kind of a party and a robbery third is later killed the course of a purchasers at which both present, each a principal them is to the murder. Remaining disposed properly convinced that we of this originally, case rehearing motion overruled.