Odis v. StateOdis v. State
- Reporters:
- , ,
- Before:
- McDonald
Lead Opinion
The conviction is for incest; the punishment two years.
Thе typewritten statement of the appellant, which was introduced in evidence by the state, shows thе offense charged.
Appellant, testifying in his own behalf, stated that he was 70 years of age, could nоt read, could write his name and a few simple words, and had completed the third grade. He admitted signing the statement but stated that “I didn’t want to make any statement at all” and that “I did not make no statement. He (the officer) made it hisself”; and further, the appellant denied the truthfulness of the facts recited in the stаtement. He testified that when he arrived at the court house about 1:00 P.M. he was placed in jail where he remained until about sundown when he was taken into a small room where he remained while being questioned by the officers until he signed the statement about 3:00 A.M. the next morning; that he had no dinner, supper or food at any time during the interrogation; that the officers cursed and threatened to hit him, called him cowаrd and yellow because he wouldn’t place his hands on the officers; that “I got tired, just like drunk. I was sick, I was weak” and that he signed the statement after the officer “begged me lots” and told me “to sign and we will give you bond,” but “if you don’t do it, we won’t give you bond.”
Officer Davis, a state’s witness, testified that he first saw the appellant about 6:00 P.M. when he was taken into a little room in the back and that he agreed to make the statеment around 1:00 A.M. the next morning.
Deputy Sheriff Hullman, a state’s witness, to whom the eighteen line statement was madе and who typed it, testified that “He (appellant) did not readily admit it. * * * But after a while he did.” Hullman stated that he first saw appellant about 5:30 P.M. when he placed him in jail but did not begin interrogating him until about 8:30 or 9:00 P-M. He further statеd that there was some four of five hours of talk in the little room but that he didn’t say anything to the appellant about making a statement until probably after midnight and that the appellant signed the statement about 2:30 A.M.
The officers while testifying denied the use by them of any persuasion, threats or coercion upоn the appellant in the making of the confession.
*109In the absence of the jury, the trial judge heard evidence on the voluntary character of the confession and concluded that it was not inаdmissible as a matter of law. But he recognized that there was an issue as to whether appellаnt’s confession was voluntary and in his charge instructed the jury that before they could consider the statement they must find that no threats, duress or physical violence was used to induce him to make the confеssion.
By specially requested charge, the appellant called the court’s attention tо its failure to instruct the jury that unless they found that the confession was made without compulsion or persuаsion they could not consider it. These defensive issues were raised by the evidence.
Art. 726, V.A.C.C.P., provides in part:
“The confession of a defendant may be used in evidence against him if it appear that the same was freеly made without compulsion or persuasion * * * .”
In Jordan v. State, 163 Tex. Cr. R. 287, 290 S.W. 2d 666, we said:
“In his charge to the jury the court required them to find that the appellant had been warned but did not mention the other defensive matters raised by the appеllant’s testimony.
“By requested charges the appellant called this omission to the court’s attention.
“We have concluded that the case of Cordes v. State, 158 Tex. Cr. R. 529, 257 S.W. 2d 704, 705, is here controlling. There we said, ‘He was entitled to a distinct submission of each defensive issue raisеd by the testimony.’ ”
That the jury considered the voluntariness of the statement is evidenced by its written request, during its deliberations, to the judge for a definition of duress which he declined to give them-
There was no evidencе of the use of physical violence by the officers upon the appellant.
The facts аnd circumstances surrounding and under which the making and signing of the statement took place entitled the *110appellant, in addition to the submission of threats and duress, to a distinct submission of whether the statement was made without compulsion or persuasion. These issues having been raised by the evidence, the failure of the court to either give or respond to appellant’s specially requested chаrge was prejudicial to his rights and calls for reversal.
The judgment is reversed and the cause is remanded.
Opinion approved by the Court.
Lead Opinion
ON STATE’S SECOND MOTION FOR REHEARING
McDonald, JudgeOur opinion on state’s motion for rehearing is withdrаwn and the following is substituted therefor:
The state contends that appellant made no objectiоns and reserved no exceptions to the court’s amended charge; that, having failed to do so, any defects were waived; and that no error was shown, therefore, in refusing the special requеsted charge originally presented.
An examination of the record shows only one charge. There is only one file mark on the charge, and it bears no earmarks, signs, or designations showing that it was ever modified or amended.
In its motion for rehearing, the state refers to the “trial court’s qualification tо said requested charge.” The court merely used this qualification to complete the bill of exception by showing the instruction given in the main charge, thereby justifying his refusal of the requested charge- This instruction had to be contained in the main charge or it could not have been quoted as it was by the court in his qualification.
The state’s second motion for rehearing is overruled.