Allgood v. State , 141 Tex. Crim. 327 ( 1941 )

The State's motion for rehearing in this cause primarily deals with the contention that the evidence of the confession was admitted without objection and that there is no valid bill of exception thereto. The appellant has filed a supplemental transcript curing the defect, if such it be, there pointed out and disclosing definitely that appellant submitted to the trial court a special requested charge withdrawing this evidence from the jury; that the trial court refused to give the charge and that appellant duly and timely excepted to such ruling.

In approving this bill the trial court states that no complaint was made of this action on appellant's motion for a new trial and that he did not consider the same in passing on the motion for new trial for the reason that he believed it to be waived and his motion predicated on other and entirely different grounds. It is not necessary to renew the complaint in the motion for a new trial. (Texas Jur. Vol. 4, p. 103, Sec. 69, and authorities there cited.) The requested charge sufficiently presents the matter to the trial court and it is properly before us for consideration.

Furthermore, it is not intended hereby to hold it was essential that the question be raised in just that manner. The state of the record was not overlooked in writing the original opinion. It appears very clear from the record that the confession was not a free and voluntary one. This court has dealt definitely with forced confessions. When it appears that a written confession is thus tainted it becomes the duty of the trial court and of this court to look cautiously into the status of the confession and deal with it in a positive manner. The Constitution and laws of the State of Texas are plain and well understood. Our conception and respect for the Constitution of the United States impels us to so view policies of procedure that we do not offend, "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder v. Massachusetts,291 U.S. 97, 78 L. ed. 674; Rogers v. Peck, 199 U.S. 425, 50 L. ed. 256.) No court has power to institute trial by ordeal.

Chief Justice Hughes in Brown v. Mississippi, 297 U.S. 278, has said, "And the trial * * * is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence * * *."

Holding that such conviction and sentence constitute a clear denial of due process, Chief Justice Hughes quotes from Fisher v. State, 145 Miss. 116; 110 So. 361, as follows:

" 'Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices and prohibited them in this country . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.' "

Following this, Mr. Hughes asserts:

"In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of essential elements of due process, and the proceeding thus vitiated could be challenged in any appropriate manner. Mooney v. Holohan,294 U.S. 103, 79 L. ed. 791, 55 S. Ct. 340, 98 A. L. R. 406, supra. It was challenged before the Supreme Court of the State by the express invocation of the Fourteenth Amendment. That court entertained the challenge, considered the federal question thus presented, but declined to enforce petitioners' constitutional right. The court thus denied a federal right fully established and specially set up and claimed and the judgment must be reversed."

While this court has not had occasion to announce that the question may be raised for the first time in the Court of Criminal Appeals, which is a court of review, we cannot close our eyes to the appropriateness of the expressions of Chief Justice Hughes in the Brown case as applied to the facts here before us, particularly as they appeared before the supplemental transcript was filed.

We find no merit in the State's contention and adhere to the view expressed in the original opinion that it was the duty of the trial court to exclude the confession from the consideration of the jury, without which it appears there was not sufficient testimony to support a conviction.

The motion for rehearing is overruled.