Hernandez v. State , 110 Tex. Crim. 159 ( 1927 )

CONCURRING OPINION. Touching the adequacy of the proof of the corpus delicti, the writer finds himself in doubt. If the facts shown by the officers of the State to have preceded and accompanied the taking of the confession were more convincing concerning the validity of the document signed by the appellant as a confession of guilt, my views relating to the proof of the corpus delicti might be more definite. The conclusion has often been asserted, and is deemed sound, that doubts in the appellate court should be resolved in favor of the accused.

In the present case, a Mexican has been condemned to forfeit his life for a crime which he claims he did not commit. Eliminating the alleged confession of the appellant, my associates entertain an honest difference as to whether the proof shows that the crime was committed. That fact is enough to demonstrate that the question is not without difficulty. The evidence shows without dispute that while the appellant was incarcerated in jail the officers, ignoring the statute which inhibits the use against one accused of crime of declarations made while in custody when not reduced to writing after warning, placed a dictaphone in the jail and thereby claimed to have heard a conversation between the appellant and another person confined in jail. This testimony was received without objection, though if objection had been urged, the statute (Art. 727, C. C. P., 1925) and innumerable announcements of this court would have condemned it as improper. Thereafter, as related in the opinion of Justice Hawkins, and as conceded by the sheriff, the appellant, blindfolded and with a chain around his neck, was taken at night to the spot where the deceased lost his life, and with the bones of the dead man placed before his eyes, was told not to feel uneasy as he was in no danger. According to the officers, he there recognized the place and in effect admitted his guilt. This evidence was introduced without objection and in violation of the statute, Art. 727, supra. With the chain still around his neck and in custody of the same officers, he was led back to jail and there made what is termed and what is used as a voluntary confession of guilt. While at the place described, where the scene was staged such as above mentioned and more fully set out in the opinion of Judge Hawkins, one of the officers or his companion was dressed in what is termed "white clothes," and according to the appellant, a fire was built and a stake driven into the ground, and he was told in effect to confess or suffer death by fire. The appellant was not represented by counsel of his own choice but by one appointed by the court. If proper objection had been made, or any objection in fact, much of the evidence which must be relied upon to establish the corpus delicti, would, in obedience to the mandatory statutes of the State, have been excluded. The whole record makes it manifest that the appellant has not had a trial such as is contemplated by the law of the land, and the evidence that a crime has been committed at all being such as to impress upon the minds of my associates diverging views, I cannot without violence to my conscience write the words which condemn this man to death, and must therefore concur with my associate, Judge Hawkins, in the reversal of the judgment.

DISSENTING OPINION.