James v. State , 128 Tex. Crim. 604 ( 1935 )

In his motion for rehearing appellant urges that his confession should not have been admitted in evidence against him because he says the statements therein "did not conduce to establish his guilt." He seems to rely upon an expression in Musgrave v. State, 11 S.W. 927, containing the language quoted. In that case the court was discussing the provision of the Code of Criminal Procedure (present article 727, C. C. P.) which admits in evidence confessions not made under the formalities required by statute if statements contained in the confession are found to be true and conduce to establish the guilt of the party who makes it. We find no place for application of that phase of the statute in the present case in so far as the confession is concerned, which is set out in extenso in our original opinion. The sheriff testified that after appellant had been arrested he was searched for weapons and none was found on him, and upon being asked where the "knife" was he told the sheriff it was buried; he went with the sheriff and pointed out the place where the knife was buried. The handle of the knife had blood upon it. The statement of appellant made to the sheriff about the whereabouts of the knife fell under the provision of the statute to which reference has been made, but no objection seems to have been interposed to proof regarding the knife, and no valid objection occurs to us which could have been made.

Attached to appellant's motion for new trial was an affidavit of one juror which, among other things, contains the following statement: "It was also discussed by the jury that defendant did not offer any evidence or testimony in his defense." The statement is in no respect elaborated. No evidence heard upon the motion for new trial is brought forward, although the order overruling it recites that evidence thereon had been submitted. The effect of such recital is discussed in Crouchett v. State,99 Tex. Crim. 572, 271 S.W. 99, and many cases therein cited in the twelfth and thirteenth paragraphs of said opinion. Notwithstanding the state of the record appellant insists that we should hold that the jury discussed the failure of appellant to testify in his own behalf, basing such conclusion on the affidavit in question. The record shows that only one witness, a physician, was called by appellant. The witness was interrogated with reference to appellant's mentality, and upon the whole his testimony was more favorable to the State than to appellant. The record reveals that many persons were in a position to have testified in regard to such issue, and the discussion of the jury may well have had reference to a failure to call upon witnesses who did testify for their views in regard to appellant's state of mind. We are in no position to say that appellant has shown any direct allusion to his failure to testify, or that what might have been said was an indirect but "necessary" reference to such fact. Boone v. State,90 Tex. Crim. 374, 235 S.W. 580; Kennington v. State, 49 S.W.2d 776.

The motion for rehearing is overruled.

Overruled.