Thе appellant was indicted and tried for the murder of one J. S. Pledger, alleged to have been committed in the county of McLennan, on July 14, 1875. On the trial below the jury found the accused guilty of murder in the first degree, and he was so adjudged by the court, the punishment being affixed by the verdict and judgment at death by hanging.
The most important inquiry presented by the record, and in the brief and oral argument of the counsel for the appellant, and concerning which the only bill of exceptions was resеrved on the trial, arises out of the ruling of the court admitting in evidence to the jury certain confessions made by the accused to the witness Autry, and testified to by him on this trial, under the circumstances under which the confession was made and the condition in which the accused was placed at the time, as disclosed by the witness.
The confession was made in answer to a question propounded to the accused, and under the following circumstances, as detailed substantially in the bill оf exceptions, and set out at length in the statement of facts. The witness had heard of the killing, and that the defendant had done the killing, or was accused of it. On the night of the day on which the homicide was committed, and at about nine ■ or ten o’clock, while the witness Autry was in his house, situated about one mile from Mudtown, and about three or four miles from where the defendant lived, the witness heard some one whistle near the house, and requested one McIntosh, who was then living at the house of thе witness, to go out and see who it was that had whistled. McIntosh went out, and returned and said that it was the defendant, calling his name, who said he wanted to see the witness, Autry; and here the witness details what followed, in this language: “I and McIntosh went out to where Speer was, and I said, ‘ Johnnie, what do you want? ’ and defendant, John Speer, said, ‘ I want something to eat, and
During the examination of the witness Autry, the bill of exceptions states, “ a witness, Autry, was sworn for the State, by whom it was proposed to prove certain statements made by defendant to him, Autry, and the defendant, by his counsel, interposed, stating that it would appear that at the time of such statements the defendant was in arrest, whereupon the witness was examined, and stated,” etc.; and following with the testimony of the witness, as taken above from the statement of facts.
We here quote, again, from the bill of exceptions:
“ When witness passed defendant and McIntosh, en route to Mudtown, he asked defendant, ‘ Did you kill old man Pledger?’ to which defendant replied, ‘Yes.’ Witness asked, ‘Why did you do it?’ to which he replied, ‘I had to do it.’ To the answers to these two last questions defendant objected, claiming that defendant was in arrest at the time; which objection was overruled by the court, because it appeared that defendant made said statements voluntarily, and it did not appear that at the time the defendant was under restraint or in custody, and said testimony was admitted; and the question of restraint or custody at the time of said answers was, nevertheless, submitted to the jury by the сharge ; to which ruling of the court, admitting said evidence, defendant then and there excepted,” etc.
Whilst it will be seen that, by the bill of exceptions, it was the admission of the testimony which was objected to, still, in the assignment of errors and in argument, the objection is presented in a two-fold sense: first, that it was error to allow the testimony to go to the jury at all, for the
Confessions, say the elementary writers, are divided into two classes—judicial and extrajudicial.
“ Judicial confessions are those which are made before the magistrate, or court, in the due course of legal proceedings.” “Extrajudicial confessions are those which are made by the party elsewhere than before a magistrate, or in court; this term embracing, not оnly explicit and express confessions of crime, but all those admissions of the accused from which guilt may be implied. All confessions of this kind are receivable in evidence, being proved like other facts, to be weighed by the jury.” 1 Greenl. on Ev., sec. 216, 6th ed.; Roscoe’s Cr. Ev. 37. It is the latter class — extrajudicial confessions'—with which we have to deal in the present case. We may remark, further, that the effect of this kind of testimony, or the weight or degree of credit to which it is entitled, does not arise in the present case; the sole question is as to its admissibility.
We hazard nothing by saying that, as a general rule, confessions of guilt, freely and voluntarily made, are admissible against the accused, and that confessions not so voluntarily made are, as a general rule, not admissible. As was said by Eyre, C. B., in Warickshall’s case, cited in 1 Greenl. on Ev., sec. 219, “ a free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and, therefore, is admitted as proof of the crime to which it refers ; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as evidence of guilt, that credit ought not to be given to it, and, therefore, it is rejected.”
The conclusions arrived at by the author seem to be supported by numerous adjudicated cases. He says, in a note to the section quoted above: “The cases on this subject have recently been very fully reviewed in Reg. v. Baldry, 16 Jur. 599 [decided in the Court of Criminal Appeals, April 24, 1852]. In that case, the constable who apprehended the prisoner, having told him the nature of the charge, said ‘ he need not say anything to criminate him
In The Queen v. Johnson, Easter term, 1864, reported in 2 Leading Criminal Cases, 2d ed., 504, M. J., suspected of having committed a felony, was followed and stopped by a constable in plain clothes. The constable, having told M. J. what he was, and that she (M. J.) was charged with felony, proceeded to put several questions to her relative to a parcel in her hand, which contained the goods supposed to have been stolen. At the time he asked the questions the constable had not told M. J. that she was under arrest, “ but he would not let her go.” He did not expressly hold out any threat or inducement to M. J., nor did he, before she answered him, give her any caution. M. J. having answered the questions, the constable then told her she was not bound to say anything that would criminate herself, and
We make this extract from the opinion in Johnson’s case : “ That the rule thus laid down does not operate to exclude statements made by accused persons in answer to questions put to them, whether by persons in authority or by others, though not preceded by any caution, has been repeatedly decided, and, unless those decisions are now to be overruled, we cannot yield to the objection made to the admission of the statements of the prisoner in the present case. Thus, in Gibney’s case, which is reported in Jebb’s Reserved Cases, page 15, the prisoner was taken into custody upon a charge of having murdered his child. The constable who was taking him to jail said he held out no hoрes to the prisoner, nor used any threat. He said to him, 6 You must be a very unhappy boy, to have murdered your own child, if it be the case.’ The prisoner was crying very severely, and the constable then said, ‘ Did you kill the child?’ in answer to which the prisoner made a full confession. The admissibility of this, and of another confession to another constable, being considered, all the judges being present, it was their unanimous opinion that the confession was properly received. ‘ Some оf the judges,’ Mr. Jebb says, ‘ had doubts, but they finally concurred with the rest. They held the rule to be well established that a voluntary confession shall be received in evidence; but, if hope has been excited, or threats or intimidation held out, it shall not. The fear, however, to be produced must be of a temporal nature, and in this case there was no such threat or intimidation, nor any fear of a temporal nature produced.’ ”
The Texas Code of Criminal Procedure provides, in article 661:
‘ ‘ The cоnfession of a defendant may be used in evidence against him, if it appear that the same was freely made, without compulsion or persuasion, under the rules hereafter prescribed.
“Art. 662. The confession shall not be used if, at the time it was made, the defendant was in jail, or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court, in accordance with law, or be made voluntarily, after having been first cautioned that it may be used against him; or unless, in connection with such confession, he make statement of facts or of circumstances that are found to be true, which conduce to establish his guilt — such as the finding of secreted or stolen property, or instruments with which he states the offense was committed.” Pasc. Dig., arts. 3126, 3127.
It is believed that the restrictions thrown around the admission of confessions as evidence against the person making them mentioned in article 662 of the Code, as above set out, and which are referred to in the latter clause of the preceding article, in the expression, “ under the rules here
In Warren v. The State,
“ The evidence was that Engleke had become aware that some one was in the habit of entering his store and robbing it. He placed two witnesses in the store to watch at night. Some person entered by a trap-door, and opened the money-drawer. They struck a light, and the intruder fled. One of the witnesses ran rapidly to Engleke’s house — 400 yards. A few moments after his arrival, the negro, who was Engleke’s servant, entered, оut of breath, and said to Engleke, ‘ Two white men have broke into the store.’ Engleke charged the defendant with being the thief. Several persons soon entered, with six-shooters, and the negro was taken into the counting-room. He said to Engleke that if they would not hang him he would confess the whole business. Engleke having given the promise, he confessed to the habit of entering the store, and that at different times he had taken out, in all, as much as $75, besides some calico and tobacco ; and he offered to work it all out.” The court, on appeal, held the confession inadmissible, saying : ‘6 The evidence in this case shows that the confession was made when the defendant was in fear that his life might be taken. A statement made under such circumstances cannot be regarded as voluntary.” In this we most heartily concur. The difference between that case and the present is, however, too marked to escape observation.
In all the cases to whiсh we have had access, in which the confessions were held to be inadmissible, the reason for excluding it is found to be that the confession was induced and influenced by means of either hope or fear operating
With reference to the confession we are here considering, and the circumstances under which it was made, there is but a single expression tending to show that the defendant was in arrest at the time the confession was made, and that is the propоsition made by the witness Autry to McIntosh, when it was ascertained that the whistle came from the defendant, and the advice given to him by the witness, and his taking the defendant’s gun. The evidence does not show that these parties attempted a formal arrest, or that their action was so understood by the accused. On the contrary, the evidence tends to show that the accused had sought the house of the witness as that of a friend, for advice and assistance, and not improbably to arrange for placing him in the custody and under the protection of the law.
It is shown that the witness Autry and the man McIntosh were not officers of the law, nor was the man Harris, to whose house the witness went whilst the accused was at the house of the witness Autry. It is not shown that the accused believed, or was induced to believe, that he was in custody of an officer, or that he was restrained in any manner by the only two persons with whom it is shown he was in contact; and the very expression of the witness, that when the defendant and McIntosh started to Mudtown the defendant was to give himself up to some person or persons at Mudtown, tends strongly to show that the accused was not regarded as being under arrest at the time the confession was made. Other expressions in the evidence tend in the
Again, there is nothing in the evidence tending, even remotely, to show that at the time the confession was made any inducement whatever was held out to the accused to make the confession. No threat or promise, no influence whatever is shown, or anything tending to influence the mind of the accused in any manner, at the time or prior thereto, or tending to show that the confession was not freely made, without compulsion or persuasion. We are, therefore, of opinion that the confession, under the circumstances surrounding the accused at the time it was made, was clearly admissible under the law, and that the court did not err in permitting it to go to the jury as evidence in the case.
The court having determined that the evidence should go to the jury, we fail to find any error of which the appellant can complain in the court allowing the jury to again pass uрon the question of fact as to whether the confession was made under restraint or while in custody. To our minds, the effect of this course was to afford another opportunity to the accused to escape the effect of the confession of his guilt, had the jury concluded. that he was in custody or under restraint when he made it. It was the province of the judge to decide upon the admissibility of the evidence of the confession; and, whilst he was not required to submit any questiоn as to its admissibility to the jury, we are of opinion that if there was error it inured to the benefit, and not to the prejudice, of the appellant, and affords no just ground for reversal or appeal.
We have given to this question all the consideration its
The charge asked by the dеfendant and refused by the court was entirely unnecessary, the court having, in the main charge, given the jury proper instruction on the subject embraced in the charge which was refused. The charge of the court, taken as a whole, was an able, accurate, and eminently fair enunciation of the law of the case, as we see it by the record. The crime having been committed whilst the Constitution of 1869 was in force, and allowed it, the question whether, in case the jury should find the dеfendant guilty of murder in the first degree, they would impose imprisonment at hard labor for life in the penitentiary, in lieu of the death penalty, was submitted to the jury, and in their discretion, the jury, under the evidence before them, imposed the extreme penalty of the law, refusing to find
After а careful and patient investigation of the whole course of proceedings and the evidence, we are impressed with the fact that the appellant has been fairly and legally tried and convicted, upon a sufficient amount of competent and legal testimony, and that all the rights guaranteed him by law have been carefully guarded and duly observed. Under these circumstances, this court would be derelict in duty were it to shrink from the responsibility of affirming a just and legal judgment, however momentous the issue involved.
Finding no material error in the judgment of the District Court of McLennan County in this case, it is affirmed.
Affirmed.