*1 acting finding appellant, jury’s sustain the sufficient to a upon Guerra, Joe Cayetano an assault made pair him said assault took from means Cerda shoes. judgment is affirmed.
Joseph Louvier B. State 29,043. 1957. No. June Appellant’s Rehearing Motion for Overruled (Without Opinion) Written 1957. October John Cutler, Houston, Douglas,
Leon Attorney, Austin, State’s for the state.
MORRISON, Presiding Judge. The offense is that of to the crime of robbery; punishment, years. quote from the confession as follows: Johnny “I have known Kirk since I have Floyd 1952. known Johnny year "Ray (Curly) half. I run into about a and a Drake Tuesday, highway December Kirk out on the Beaumont *2 evening. told me that he in the He about three oelock get night go up country to my in the to use car that to wanted bootlegger. to money he use some from a He told me wanted going do it. my pull job. to with car to a I knew what he was going bootlegger a a needed car and he He said he was rob letting I up him use the car. told that he fix me for and would get My go was. car that He knew him O.K. and it. where Lincoln, door, 4 He had never used a he used was black. morning my pull joba I of. The next car know Curly came out to Johnny and at about 7 o’clock Kirk Drake night road, Josephines spent Telephone I had Motel on where right hustling girl next to the a Motel is named Jackie.-This Josephines, Telephone road, I but House on think it is Chicken might wrong. room there the name I had rented a I have days. I had stayed for three name of J. B. Franklin. I there Johnny Johnny staying. day I was When told before where got Johnny Curly Kirk we in the kitchen and and gave there went using night my asked them car the I me for before. $100 they got job they had they said how much got had out of the and paper they Then left. Then I read about $2200. they job being pulled that was the one near Garrison and knew my pulled. Thursday said that had Johnny I home and' wife On went got pistol, got my 25 had caliber the car and had also n aautomatic. I car not the I told her that had loaned the grocery pistol. Johnny at B. H. evening That I Kirk the & saw day my highway. told me the on the next wife Beaumont The looking looking my then I went law had been to house for me and grocery Johnny. and told I him there at the B. & H. found lawyer money pay a be- him that I had to have more some got job hot on and job. cause I was hot on that If I hadrot lawyer needed a I would have satisfied with $100. been gave gave Johnny got Curly hiself and and me $100 $100 Johnny day I and it to me. The next told him I needed some more got gave gave out Curly me That made I $190 $50. $540 using- spent all job they pulled my car. I of the for them have my agev lawyer give a it. I wife this then. I since $150 $540 playing poker. just spent the rest. I lost about $160 $210 pistol Johnny my in Houston is at house The borrowed got got the car. This is that he when he now. automatic up gasolene negro buy my Humble station that runs an I from a gives me a there on and he on Setticus street. I trade credit put gas just pink copy buy there when I carbon bill usually glove compartment have of the car and sev- these in the * * * *” just in there loose eral above, In addition to introduced State Kirk, recounted how the confession of John which going “were and two others had told the bootlegger job,” they a and needed his how car rob automobile, proceeded County Rusk in the robbed parties gun Houston, paid injured point, returned to part proceeds injured parties testified and their about losing $2,200.00. gasoline
A sales ticket made out to the was found injured gate, parties’ at the front and this was all followed parties being custody. into taken *3 appellant The called two witnesses who testified he was city the of Houston the time of the Appellant’s wife testified that John Kirk had borrowed night appellant’s in'question the automobile on the and had re- day. turned it the next
Appellant, testifying behalf, any knowledge in his own denied of the and stated that his confession had been involun- tary. n The state’s evidence appellant shows that the was in the cus-
tody County of the officers from Rusk they from the time left Houston until the confession was made and that no one else opportunity question appellant had the him. The testified that questioned by city he was certain Shelby officers from Center in County brutality he upon who stated acts inflicted him: Since County appellant the Rusk custody officers denied that the ever left their any brutality or that upon him, coercion or was inflicted undisputed there remained no evidence in the record which the would render confession inadmissible under the rule an- by Supreme recog- nounced Court United and States by McHenry State, nized 436, this court. See Rep. v. jury, and cases 293 2d there cited. The S.W. under charge, against appropriate found on the issue confession, voluntary nature of his and we find the evi- support dence sufficient to the verdict. shall discuss contentions advanced argument. attorney in
eminent brief
170 upon portion which appel- of the indictment quash motion to A alleged jury It was filed. case went aid” to unlawfully wilfully prepare and furnish lant “did ap- it did not Appellant contends that principal offender. alleged to or aid he was prise kind him nature compliance is in substantial indictment furnished. The have Forms, Edition, section 2314. This 6th Criminal with Willson’s State, Texas Cr. S.W. v. has held in Gann court Rep. 264, 257 837; Stepp S.W. Texas Cr. accessory crime the charging the offense in as- allege of aid rendered the character need not principal. indictment sisting concerning testimony Officer
Complaint is made while oral statements made certain about Swann under pistol. a the whereabouts of .25 caliber arrest as to already had information about appellant asserts that Swann questioned pistol sources before from other in- other had and the officers reflects that Swann The record existence, pistol question a was in that such formation information as to its as to whether was raised fact appellant pointed identity out the same or location before them. submitted this fact issue to in his The court disregard oral statements of the them to and told *4 that the had a reasonable doubt officers had or if believed receiving knowledge prior to the same from the such upon by appellant the are relied not here con- The cases trolling. question presented relates the serious admis- most Kirk, portions Henry the of of confession John of certain
sion charged principal appellant in the indictment. The the who was prove confession admissible that that Kirk’s concedes robbery, portions contends that thereof committed Kirk implicated the were inadmissible and that which protect charge properly did not from the court’s effect thereof. harmful general expressed rule in Branch’s find Annotated Edition, Code, page 100, section as 2nd follows:
Penal defendant, necessary the trial on becomes “Where another, and admissions or confessions of such show other, presence in defendant’s or not or whether whether made or made before after the commission of the offense are admis- proof person, sible to of such other but such show charge purpose must be in it was limited which introduced.” bar, charged, part, In the case in as court follows: any “You are further instructed if evidence has been you introduced the nature of an admission or con- Henry he, fession Henry John Kirk to the effect that the said John upon
Kirk commiied the offense of in and Bill alleged Crump herein, as in the second count of the indictment testimony then you such shall not any be considered evi- Joseph any knowledge dence that the defendant E. Louvier had robbery, any, by Henry prior such if the said John Kirk same; he, Joseph commission of the the said B. Lou- vier, unlawfully wilfully prepared and furnished aid assisting said Henry purpose John for the Kirk the said John offense, Kirk in the commission and execution of the said if it was committed.” objections charge.
We find no portion leveled to this upon We shall discuss the authorities which the Browney relies. In 79 S.W. 2d 311, this court principal upon held that where the testified trial and the State also introduced his confession the trial court failing erred in to tell the that his confession not could testimony. used to be court in that corroborate While it is true that opinion say, did “Statements the confession of solely which relate accomplice, light principal’s actions, and which excluded,” on throw no should be original opinion we do find rehearing both the and the opinion upon the error which the case was reversed forth, was the error in the as above set case such authority support not therefore which will con- portions admission of certain principal’s tention constitutes confession reversible error. *5 Herring, Rep. 57, parte 122 Texas
Ex Cr. 607, 53 S.W. 2d application Slaughter, here has no because whose confession was introduced, principal not the accomplice, was was an application. rule had no therefore above Suger, Rep. parte 133,
In Ex 192 S.W. 2d the offense was the court was whether question general rule, forth merely set reiterates case That bailable. above, only was admissible that the confession purpose. that guilt limited to and should be show Longoria 265 S.W. Texas Cr. In et al v. again principals, and we there the accuseds were 2d all general that gave application to the effect another rule against an- not be admissible of one accused would confession presently consid- other, under cry far rule which is a necessary eration, is, to show the that since it is purpose. is principal, his confession admissible any, authority, aware no nor are we cited have been portions to admit for the court error which holds it reversible prin- principal’s confession which shows if, accomplice in his implicates the cipal and also may not used instructed that such confession be jury, are accomplice. prove supported is quoted from Branch rule above Since contrary, we feel many authorities, know of none and we thereby and overrule the con- impelled to bound be regard. in this tention judgment
Finding error, the of the trial court no reversible is affirmed. dissenting.
DAVIDSON, Judge, assigned, originally, to Commissioner This case Belcher writting opinion therein. for the record, Judge studying opinion Belcher drew After recommended case be reversed and the in which remanded. cause opinion, agreed approved adopt and here dissenting opinion in this case:
my opinion Judge is as follows: Belcher’s the offense of conviction “The firearms; punishment, eight years crime penitentiary. in the *6 alleges only Henry prin- as the
“The indictment John Kirk although per- cipal offender evidence shows that two other participated sons him in the actual commission of rob- with bery. appellant’s
“The state introduced in written state- showing knowledge robbery ment his and how he im- was plicated voluntary it accomplice. in as an this nature of disputed confession became a against issue in the trial resolved charge. appropriate him under “The state next introduced into evidence the written state- showed, first, he, ment of John Kirk which others, committed robbery, two the offense of re- and next showing lated the facts and circumstances details of connection and to the necessary facts and Such circumstances were not Henry Kirk, principal, connect John as a with the commission robbery, his because written statement had theretofore fully showing related facts his their and elimination would impair or incomplete showing not robbery. render the confession “Appellant complains of the action the trial court in ad- mitting evidence, objection in over they hearsay, his were necessary proof alleged were not Henry Kirk, to have committed por- been John and that said tions prejudicial of said written confession him, por- were Henry Kirk, tions of the written confession John offender, showing as an accomplice which,— part, reads as follows: “ Joseph I ‘That afternoon ran into Louvier, Boone who we Frenchy, go call and I told him that we needed up a car to country going in. him bootlegger I told that we were to rob a job. I and needed his car for told I up him fix would him if «¿right. job came off He told me I could borrow his car. * * * enough shipped pay Frenchy each Louvier $100 * * * give I for the took the use of Frenchy $100 car. ** * gave of his and it to day. for the car him later in use Frenchy’s pistol automatic I left job that we had used in the * * * at the house when we took his car there home. On Frenchy Friday and he said he I saw Louvier would have to have money job gave he him since was hot on and some more give Curly day Drake him The next he $100. said he $100 give money and I some more him Curly have $190 got using us his car gave That made him more. $540 $50 we pulled much job. job we had how He know what *7 got ***.’” trial the offense “Only is here on trial —on the accomplice robbery with firearms. an to of Kirk, principals, not testi- Henry the three did
“John one of by in the case. quoted and the are the above in court’s
“Nowhere Henry state- complained portions Kirk’s written of of John relating appellant’s guilt accomplice as an excluded ment jury. the consideration of the on principal
“The confession of the offender admissible purpose proving the accomplice an not for the of the trial of guilt solely, proving accomplice purpose, of of P.C., guilt Edition, 100, principal. 2d 1 Branch’s Sec. the 93; of Evidence, 96, Ray, 1219. 2 Texas Law of McCormick Sec. referring holding “In the confession of the cases accomplice may principal the trial of the to fix the be used on said, State, principal’s guilt, Browney we in v. 311, p.
Rep. 2d 314: 79 S.W. “ holding may principal that the confession of the ‘The cases accomplice guilt principal’s used trial of the to fix the be on the * * * go give general further than to effect to the no rule (if principal or confessions of the admissions would be principal trial) are if the were on the admissible admissible accomplice, purpose proving guilt of not for of trial purpose solely proving guilt accomplice, of but for State, 167; principal. App., v. 10 Texas See White Smith ” State, Rep. 15, 237 265.’ Texas Cr. S.W. v. 91 Texas “In Cr. we S.W. Smith said: might solely the confession which
“Statements relate accomplice, light which throw no on the ” actions, be excluded.’ principal’s should prove Kirk’s confession was admissible “John alleged, as prove but was not he was robber admissible accomplice the' that the The state- connecting with the acts ments Kirk, the confession offender, showing appellant’s against the facts were not him under admissible reasonably to be hurtful and of this case and were calculated prejudicial The admission of such statements him. objection
over was error.” Judge opinion To Belcher’s I make these additional observa- : tions perhaps firmly
There is no rule of law than more established prohibits hearsay testimony, that which the introduction es- pecially hearsay testimony when the relates to accused. *8 hearsay testimony introduced,
Such was the that the state appellant’s objection, over when it read into the evidence the showing written confession of the witness Kirk that guilty charged, i.e., being was of the offense an accom- ' plice by to the committed Kirk. Under all the rules of aware, ap- evidence of I which am pellant’s objection should have I been sustained. not under- do that majority opinion stand either the state or the holds contrary, insist the trial court’s instruction to jury cured the error. Appellant’s objection was admission of the evidence. He gone did not sit jury and wait until the evidence had object; everything protect did he could do to him- against illegal self admission and harmful evidence. His rights, then, judged by objection should be made and his hearing keep jury hearsay endeavor to evidence in the first instance. can, Has the time come when the state proper over a objection, get jury testimony
timely before the illegal which is escape and harmful doing by accused and reversible error in so instructing jury the court’s not to consider the illegal so, objection If then and harmful evidence? testimony nothing, means admission of and the trial court can illegal pleasure and harmful evidence at admit long so as not to consider the testimony. he instructs testimony inadmissible and was not to If remain ought jury, admitted evidence not to have been with in the first instance. withdrawal doctrine To follow injury any aas and relieved the error thereof would cured saying my opinion, the same as be,
result withdrawn. the knife is cured when stab wound prejudicial testimony its was so inadmissible of the evi- a withdrawal not cured effect could be harmful jury. dence from the respectfully dissent. Delbert E. Richards v. State 29,093. 26, 1957. No. June Rehearing Appellant’s Motion for Overruled (Without Opinion) 1957. October Written *9 Onion, Antonio, James C. San Attorney, Green, Jr., Hubert Criminal W. District Morris
Riley Attorney, Edwards, Assistant Criminal District An- San Attorney, Douglas, tonio, Austin, and Leon State’s state. Judge. DICE,