Parker v. State , 91 Tex. Crim. 68 ( 1921 )

But one contention is made in appellant's motion, viz: that the trial court should have submitted to the jury the question of the voluntary character of the appellant's confession, and that we were wrong in not holding erroneous the failure so to do. Relative to this matter the facts show that the State introduced against appellant part of a confession made by him to a Mr. Leach. No objection was made thereto at the time, nor was any motion thereafter made to strike same from the record. The whole of said confession is attached to bill of exceptions No. 7, qualifying which bill the court sets forth, in substance, that appellant was told that if he desired to introduce all said confession not placed in evidence by the State, he could do so. From said confession it appears that appellant stated therein that he shot deceased, at the time of said alleged homicide, but was so drunk at the time that he did not know what he was doing. We observe that no contention was made on this trial that appellant did not shoot and kill deceased, but reliance was had on the fact that at the time he was in such condition from the recent use of liquor, which he claimed was "doped" or drugged, as not to know the nature and character of his act. Appellant took the witness stand in his own behalf on the instant trial and testified that when he shot, Flora Moore (a woman in the car with him at the time) told him to shoot deceased. On cross-examination he said: "I thought he was going to pull a pistol on me, because the girl punched me and told me he was. * * * I believe the car was running slow when I shot the boy, but I really don't know. * * I recollect something of the pumping station, but I don't know anything about it, I was too drunk to know. * * * I told Charley Leach the truth, but I did not tell him all the truth, but I am telling the truth now." In this condition of the record we are asked to hold that not only was error committed in the failure of the court to tell the jury that if the confession made to Mr. Leach was not freely and voluntarily made, they should not consider same for any purpose, but also that such error was prejudicial to the appellant. We cannot so conclude. It is needless to discuss confessions. They are held to be statements of the accused in criminal cases hostile to his own interests, but which must be shown to have been made in accordance with certain precautionary rules, before same will be held admissible. These rules are deemed wise and needful in order to prevent the use against the accused of his statements made under duress, fear, intimidation, coercion or hope of favor, etc. Said rules are based on the general hypothesis that the truth of statements made under the circumstances referred to, is too often questionable. The only object sought in the entire matter is truth, and, in an effort to arrive at same, it is statutory in this State, and seems almost universally held, that when in connection with a confession, even though made under circumstances otherwise rendering same inadmissible, facts are stated which conduce to establish guilt, such as those leading to the discovery of stolen property, or the weapon or means by which the crime was committed, — then the essential element of truth in the confession is so far established as to make such confession admissible. Believing the point under discussion to be analogous, and in consonance with this rule we believe that when the accused takes the witness stand on his trial and affirms under oath the truth of the matter contained in his confession, the question of whether such confession was freely and voluntarily made is no longer material. As said by the Supreme Court of Nevada, in State v. Johnny,87 P. 3, wherein the court was discussing the identical question here presented, the accused having testified as a witness to substantially the same facts as contained in his confession objected to because obtained through fear, inducements or threats, the court said:

"All that can be made of the defendant's testimony is that he was scared when he made his confession to Harbin, but he iterates on the stand that what he told that night was the truth. The only object in excluding testimony given under threats, duress or upon promise of reward, is that such testimony might not be the truth. A defendant cannot be prejudiced by the admission of a confession which he voluntarily acknowledges under oath, is the truth." To the same effect is the statement by Mr. Wigmore in his work on Evidence, Vol. 1, Sec. 856, from which we quote.

"It has already been noticed (ante, Sec. 822) that the fundamental theory upon which confessions become inadmissible is that when made under certain conditions they are untrustworthy as testimonial utterances. A very slight probability of untruth, to be sure, is sufficient to exclude (a probability much less than that which supports other testimonial exclusions), and the tests worked out are often more or less artificial; but this principle underlies the whole body of rules. If now a circumstance appears which indicates that the law's fear of untrustworthiness is unfounded, and counteracts the significance of the improper inducement by demonstrating that after all it exercised no sinister influence, the confession should be adopted. This is the theory of Confirmation by Subsequent Facts, which has been in vogue ever since there has been any doctrine about excluding confessions."

Without discussing the question of the voluntary character of the confession in issue, we might correctly overrule appellant's contention for the reasons just stated. Closely akin to the principle announced is the well established rule that when evidence is introduced or permitted without objection, this would render unavailing on appeal an objection raised to similar evidence when offered.

We would furthermore not be inclined to hold, upon an analysis of the facts herein as applicable to the principle under discussion that, in the absence of some testimony affirmatively showing that the confession in evidence had been wrongfully obtained, it was material error to refuse to submit the issue of the voluntary character of said confession to the jury, the only supporting proof of appellant's contention that it was not freely and voluntarily made, being the statement of the accused that his confession was not voluntary, and that he was "crooked" to make it, when the appellant's narration of the details of what then took place between him and Mr. Leach appears to entirely contradict the conclusions embraced in his statements just noted.

Finding no merit in the motion same will be overruled.

Overruled.