*1 any testimony. testify, nor did he offer Appellant’s sole contention is the facts do not warrant appellant, murder with malice. a conviction for Counsel for brief, rely upon the cases of Parks v. their so contend 464, Ely R. 99 S.W. 2d v. 139 Texas 520, R. 2d 626. Cr. point. are deemed in
These cases case, parties In the Parks both showed being down twice and was at- accused been knocked the fatal shot was fired. No similar tacked third when suggested facts are in the instant record. killing Ely case,
In an occurred in connection with comparable by unlawful of the accused the deceased. No arrest presented facts are in the instant case.
The conclusion is case before reached that facts by Lovelady are controlled the rule announced in v. us 570, 50,R. is intended that the shooting one with a to authorize the is sufficient shooting also, See, malice. conclude that was actuated 42, Harvey 332, R. 1, Brown 153 Texas R. 2d 226. Cr. Believing conclusion, jury’s the facts sufficient to warrant judgment affirmed. Opinion approved by the court.
Maurice v. State 26,604. No. 1953. November Appellant’s Rehearing February Motion for Denied Rehearing Second Motion for Denied (Without Opinion) March Written Directing Order Issuance of Mandate Filed June *2 Golding, (Bernard A. Henry Doyle, Francis L. E. Williams Houston, Counsel) for all Haynie, Attorney, King Scott, C. Assist- H. District William Wesley Dice, Houston, Attor- Attorney, and State’s ant District Austin, ney, for state. Judge.
MORRISON, murder; punishment, death. The offense is working McCasland, while a shown that Mrs. January 6, 1953, alone, shop her death on between met flower gunshot p.m. wound. The result of 3:00 and 3:35 as the money shop There is some evidence from the flower was taken. firing by the than those caused that received other wounds she weapon. of a suspicion arrested on and co-indictee were January January At 2:00 a.m. on
of another offense on and had committed confessed that he his co-indictee the murder. prior months recited that some three confession at of his cousin Rich- the homicide he had visited home County, he had a .22 and while there stolen
mond in Fort Bend January pistol and pistol; 6 he had taken his caliber that gone Gilbert, they and had discussed rob- to the home of_Willie gone bing someone; them had in Willie’s automo- the two of gotten they home, a stick back to bile it, agreed they with a chunk of iron on the end of robbery; they was to use in Willie drove flower shop woman; and saw that there was no one there but they change bill, entered asked for $5.00 change when the woman turned for the Willie struck her with stick; again, the iron on the end of that he hit her and she floor; whereupon, appellant fell to the walked over her range. fired a bullet this, appel- her head at close After got money desk, lant out of the box on the and the two of shop money. them left the flower and divided the The confession continues to put relate that bed; carried the stick back home and under the that he carried the down to the end of Quinn Paul woods; Street and threw it into the thereafter it, gone gotten he told they officers about the stick and exhibited it to him. *3 Ford, County,
Isiah a resident of Richmond in Fort Bend appellant cousin-in-law; testified appel- that was his wife’s lant had charged visited in his home sometime before the date indictment; appellant and after left he looked pistol gone. for .22 caliber and found that it was Sheriff Kern testified that he went to the scene of the homi- cide, slug found a floor, bullet or and from his observa- tions of the body wounds of deceased instituted a search gun club; a a and appellant’s that he went to home and found a club with an iron nut on the end of it. Both the and bullet club brought Department were' Safety to the Texas of Public Aus- testing. Experts tin for department from testified that the slug bullet or had come from a .22 firearm caliber and that the club had human blood on the iron end of it. The never was found, though even bayou the area of the was searched. alibi, defense was that of and he was in a measure supported by some of his witnesses. law,
Unless the confession was inadmissible as a matter of support evidence is sufficient to the conviction. attempt apply We shall undisputed evidence rule as adopted by Supreme this court and the Court of the United States. facts, These which would a raise as to the admissi-
bility confession, undisputed: are and was warrant without arrested Appellant prior to the following and his arrest magistrate taken before making confession. of the jail in an of the by out the officers carried Appellant was in the murder. pistol used locate
effort to prior jail any while in receive visitors Appellant did not making confession. to the long and raise the issue of brutality, only which he He claimed
uninterrupted questioning. shortly right up con- before he upon him until inflicted said was hit him over the head officers testified that the fessed. by named piece pipe Each of the officers and hose. with a any appellant at denied that he struck any custody that he had inflicted bru- their while he was in tality upon any him in manner. im- undisputed was taken further
It is given hospital, mediately after he confessed to the physical a doctor. The doctor testified that he examination having any been inflicted or evidence of violence saw no bruises body that he examined his head only thoroughly. one break in The doctor testified that he found appellant and was a ulcer on his left shin. skin of small the Appellant shortly con- a witness who saw him after the
offered he saw some scratches fession was made who testified that *4 legs just above the ankle. objection Estes, newspaper reporter, testified without Mr. progress present was in when the that he search, appellant, of the told who was at the scene and that the thought pistol had a tree when he he the hit threw him that might away bayou, present have fallen in the and was also it confession; appellant the that he witnessed later when the made same; he read each sentence of the confession to meaning appellant, him if understood the of the sen- asked he correct; appellant tence, had answered and if it was and that the question. testified that he saw affirmative to each Estes appellant injuries person of no marks violence or present when the confession time. The two other men at that investigation the case had not of was made been active them, Albertson, against Mr. testified that One of appellant specifically questioned mistreatment about 306 appellant told by going him “that he felt better ahead admitting it.” return to undisputed
We
the enumerated
facts:
Appellant
1.
was arrested without a warrant and was not
magistrate.
carried forthwith before a
holding
It has been the
court,
consistent
of this
and of the
Supreme Court
passing
of the United States in
on state court
cases,
U.S.,
that the rule in
819,
McNabb v.
87 L. Ed.
not
does
apply and that the failure to take an accused forthwith before
magistrate
standing
does
itself
alone
vitiate
confes-
Dimery
State,
sion.
v.
156
Rep. 197,
293;
Texas Cr.
240
2d
S.W.
Gallegos Nebraska,
55,
v.
242
141;
State,
U.S.
72 S. Ct.
Shook v.
Rep. 515,
156
220;
Texas
244
Cr.
2d
Leviness v.
157
Rep. 160,
Texas
115;
Cr.
247
2d
Golemon v.
157
534,
Rep.
(writ
Texas Cr.
denied);
of certiorari
Gasway
Rep.
(writ
Texas Cr.
343 U.S. 72 S. Ct. Ed. L. Appellant jail by was taken out of the officers. fact, In important connection with this it is note that undisputed present also that there were at such time at least newspaper reporters, two one of whom talked to the hearing officers, out at which told reporter brutality that no had been threatened or inflicted him the officers. during received no visitors his confinement in jail. McAlpine
Jailer testified did that he not think the any visitors, supposed but “that there been none there to see him.” jail aunt testified that she had been to the *5 permission
had denied to see the been She did not name or officer describe the who she claims refused to let her give see the and did not or the dates the hours of such visits. right appellant was denied that the proof shown Had family or of his attorney or members with an of consultation not told inquiries and were parties made
that such confining him part of those confined, conduct such was concerning process. due question serious raise a would the case prove in effort to was no that there noted will be or confined held incommunicado appellant was us that before and rela- that his friends place confinement or of in an unusual con- where he was learn inquired and were unable to tives fined. testimony unsupported upon the conviction
To reverse this pre- as to relative, in her was so indefinite of a who it, contradicting place in of the hands from would clude the state no came every of a whenever one accused the cause reversal jail. him he was in to see while shown to the confession have concluded We law, of and the trial court did not as a matter
be inadmissible having admitting jury pass its err in same voluntary character. objection into evidence of the to the introduction requires presented unique in a manner and
stick or club rather extended discussion. Sheriff Kern testified without ob- occupied by appellant jection that he went to home W. permission Sampson; B. that he searched the house with the Sampson and cross-examination of B. found the club. On W. concerning sheriff, appellant him the se- curing sought permission, prove but that the sheriff rather had a search warrant and that the warrant was invalid. When witness, into another the state offered the club evidence grounds objected search was ille- illegal gal, under an arrest at the because the made and warrant which time the search was only pistol. a .22 had been was issued for a search for issued theory permission The court admitted the club on the granted B. and so stated been the officers W. ruling. Henry Appellant called Officer the affiant on the affidavit sought prove for the search warrant and that the search war- rant was invalid matter law. *6 Sampson, then
The called B.W. who testified that given any permission he had not cross-examination, officers to search. On Sampson B. put
W. admitted that he had giving permission his mark to a statement to search. rejoinder proved state The in that sometime after the search Sampson given deputy B. W. sheriff a written statement stated, part: in which he
“ . . and me they . then showed a search warrant had to my I search house. them told officers I that was unable read gave permission or write and I then them to search the house outhouses, they I all told them didn’t need search war- rant, go they and to ahead and look for what wanted.” pass upon legality needWe not of the search warrant if gave Sampson permission W. B. for the search. An issue of fact raised, shown, charged we properly as have and the court they the they not to consider were the stick unless or club
first found that B.W. had invited the sheriff in him that told he did not need a search warrant. Finding error, judgment no reversible of the trial court is affirmed. rehearing
ON APPELLANT’S motion Judge. WOODLEY, urges apply we should law stated
Hernandez v. wherein this court said that if the officer is armed with a de right, go search says fective warrant and the accused “all ahead” consent will not be inferred. original opinion expressed
In our we no conclusion as to the validity invalidity or of the search warrant. form,
It was sufficient in as was the affidavit magistrate. it was issued was attacked testimony of the affiant who denied that he had sworn pistol object which was the from him. stolen sought He testified that was one with which murder allegation had been committed and the in the affidavit which he admittedly executed, the effect that been stolen from him, was not correct. therefore, attack, is as to the truth of the averments affidavit.
In Hernandez v. 255 S.W. may go we held that a trial court behind the affidavit falsity and search warrant to determine the of facts therein in *7 regular order to a search warrant on its face. invalidate See State, 211; Rep also Elms v. 114 Texas Cr. 26 2d S.W. 848; Piper Jenkins v. 32 2d S.W. Rep. 306, 2d Pond v. 962; Harkey 2d 808. applies County The same rule in civil cases. Coleman See Country Club v. writ refused.
Aside from the sufficiency of consent and the warrant, and his witness W. B. Sampson was to the effect that the club in evidence was the club which was under the bed in the home.
We remain convinced that error reversible shown in the admission club in evidence. light
haveWe re-examined the record in the motion and remain convinced voluntary the issue of the character of the confession was for the and that the con- fession was not inadmissible as a matter of law. rehearing' motion for is overruled. Eldridge
Curtis v. State 26,972. May 12, No. Appellant’s (Without Rehearing Motion for Denied Opinion) Written June