Whitfield v. State , 104 Tex. Crim. 232 ( 1926 )

The offense is murder, and the punishment is twenty-five years in the penitentiary.

The first complaint raised by appellant in his brief is at the court's action in permitting the State to introduce in evidence four alleged voluntary confessions made by the appellant. The introduction of these confessions was contested on the ground that they were induced by duress and coercion on the part of the officers. The voluntary character of the confessions are stated in the confessions themselves and the officers taking the same each testified that they were freely and voluntarily made. On the contrary, appellant introduced testimony showing that his contention that they were induced by fear, threats and coercion was correct. The court in his charge to the jury submitted the question of the voluntary character of these confessions to the jury in a correct charge. The court's action in the matter is correct. Where an issue is made that a written confession containing a proper warning was not voluntarily made, the issue should be submitted to the jury. Jordan v. State, 51 Tex.Crim. Rep.; 101 S.W. 247; Knight v. State, 55 Tex.Crim. Rep.; 116 S.W. 256; Berry v. State, 58 Tex.Crim. Rep., 125 S.W. 581; Blocker v. State, 61 Tex.Crim. Rep.; 135 S.W. 130.

The conviction was for the killing of the appellant's wife, her dead body being found near the residence where they were living. By various bills of exception appellant complains at the court's action in permitting the officers to testify as to clothing, a pistol and cartridges found in the appellant's home. As illustrative of the insufficiency of these bills to show any error we quote the following from Bill No. 1:

"Mr. Jimmy Allen was permitted to testify, over the objection of the defendant, that a man had appeared at the police station early Sunday morning, that he asked about anyone seeing a tall, dark, brown-skinned woman; that he was wearing a dark shirt and a dark pair of trousers; that he next saw those trousers hanging on a nail in defendant's room in Pine Street; that he had no search warrant at the time he went into defendant's home; that he found in the watch pocket of the defendant's trousers a thirty-two caliber pistol cartridge; that they were the same trousers Bob Whitfield had on at the time he came to the police station, which testimony was then and there objected to by the defendant at the time it was offered upon the following grounds: That anything he might have seen in said house, or discovered therein, or that he might have heard therein was inadmissible in evidence for the reason that the witness did not have a search warrant."

The bill further shows that the objection was overruled and the testimony admitted. We think it clear that this bill fails to show any error. It is unnecessary in this case to discuss the recent search and seizure law passed by the 39th Legislature. Under no construction of that law can it be contended that in all cases evidence of things seen at a private residence is inadmissible simply because the witness seeing them had no search warrant. This bill of exception utterly fails to negative the idea that the witness Allen was properly in the house and fails to even suggest that he did not have the consent of the appellant to be in said house at the time the facts above disclosed were discovered by him. Rippy v. State, 219 S.W. 463; 87 Tex.Crim. Rep.; Tiner v. State,243 S.W. 1092; Banks v. Commonwealth, 227 S.W. 457.

Under the record in this case we think no error was shown by the bills of exception in the court's action in permitting the State to prove the things found by the officers at and near the home of Whitfield. They were cogent circumstances that tended to shed light on the killing of the deceased and the defendant's connection therewith.

Neither do we think the court was in error in permitting the witness Allen to testify to statements made by the appellant at the undertaking parlors where the body of the deceased was located. The bill of exception, we think, shows on its face that the appellant was not under arrest at the time these statements were made. It certainly fails to show that appellant knew or thought he was under arrest at the time.

Finding no error in the record and believing that the evidence is amply sufficient to support the verdict, the judgment is in all things affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.