63 S.W.2d 849 | Tex. Crim. App. | 1933
The appellant was convicted of the offense of murder and his punishment assessed at death, from which judgment he prosecutes this appeal.
The defendant has assigned 25 errors but in view of the disposition that will be made of this case it will be unnecessary to discuss all of them in numerical order. The defendant complains in his 9th assignment of error of the action of the trial court in refusing to give his requested special charge No. 1, which reads in substance as follows:
“A confession in order to be admissible against the defendant in a case must be shown by the evidence to have been freely and voluntarily made without compulsion or persuasion and in regard to the alleged confession of the defendant offered in evidence by the state in this case the jury are charged that if they believe such confession was not freely and voluntarily made, or if they believe the same was induced by threats, coercion or persuasion or by promise of immunity or any other improper influences, or if the jury have a reasonable doubt as to whether such alleged confession was freely and voluntarily made, then they should wholly disregard said confession and they should acquit the defendant, unless they believe from the other evidence in the case beyond a reasonable doubt that the defendant’s guilt has been established of the offense charged in the indictment.
“I charge you further in this connection that if you find the fact to be that the alleged confession was reduced to writing on the day following the alleged oral confession or on a day soon thereafter in the presence of officers who procured the forced confession, if you find such was forced, does not make it a voluntary confession and the same influences and the same force, if any, would not have to be repeated in order to make the confession an involuntary one.”
The court gave defendant’s requested special charge No. 1A which embraced in substance paragraph one of the requested special charge No. 1, but no charge on that phase of the law as embraced in the second paragraph of the charge above quoted was submitted to the jury. We believe the refusal on the part of the court to give the substance of requested special charge
The defendant did not object to the introduction of the confession in evidence and therefore the question of whether the same was admissible is not presented to this court for review. Reverting to the incident of the whipping of appellant, we cannot forbear to say it is regrettable to note that officers who are charged with the enforcement of the law should be so ready to violate it.
Appellant also complains of the county attorney’s closing argument in which he used the following language: “I want to tell you that the whipping that Lister Thompson received from the sheriff of Houston county in the presence of the officers when his confession was taken was not nearly as bad as some that I have previously received.” The appellant objected to this argument but the court overruled said objection and appellant reserved his exception in due form. We are of the opinion that this argument was highly prejudicial to the defendant. This pretended argument was but a statement of the fact denying that the appellant had been severely punished by the officers and was clearly an attempt to minimize the punishment and to create in the minds of the jury the impression that the confession was not a result of the punishment that was administered to the defendant. If he intended to testify as to what transpired in the courthouse in Crockett at which time he was present he should have taken the witness stand, testified under oath, and submitted himself to cross-examination by the appellant.
The other errors complained of may not arise again on another trial and we therefore pretermit any discussion of same.
For the errors above pointed out, this case is reversed and remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.