Baird v. State , 156 Tex. Crim. 644 ( 1951 )

ON MOTION FOR REHEARING.

MORRISON, Judge.

Appellant presents a forceful motion for rehearing herein, and we shall attempt to discuss his contentions in the order raised.

A portion of appellant’s confession was introduced in evidence. The court charged the jury that they should not consider the same unless they believed it to have been freely and voluntarily made and that the appellant was uninfluenced by persuasion in making the same.

This charge was proper because of the testimony of appellant’s wife that certain promises had been made to her husband which induced him to confess. Appellant now contends that this testimony of appellant’s wife stands uncontradicted and that, therefore, the confession should not have been submitted to the jury.

Mrs. Baird set the scene and named the actors whom she claimed influenced her husband into confessing, and this being the only defensive testimony on the subject, appellant is bound thereby. She said, “The conversation took place down stairs in the hall in the botton floor of this court house in front of the door that leads out there by the sheriff’s office.” “John Wood, Walter Teel and Mr. Emory were present.” The record discloses that John Wood was a Texas Ranger stationed at Lubbock, Mr. Emory was Sheriff of Sterling County, and Mr. Teel was Sheriff of Glasscock County, where the prosecution was had.

The substance of Mrs. Baird’s testimony was that Mr. Emory had told her husband certain things which induced him to confess.

After she had so testified, the state called Mr. Teel in rebuttal. He testified as follows:

“I did not hear Sheriff Emory of Sterling City make any kind of promises of leniency or anything like that to this defendant if he would make a statement. I never heard anything that sounded like that. This defendant talked on the telephone to his lawyer before he made the statement. * * *

“I sure didn’t hear Sheriff Emory make any such statement to Tim Baird as you have been inquiring about. We were all working together on this case, that is, Sheriff Emory, John Wood and myself.”

Nowhere in Mrs. Baird’s testimony do we find any intimation that Mr. Teel was absent from the group at any time during the conversation. Therefore, Mr. Teel’s testimony joined the issue which was submitted to the jury in the charge. We cannot speculate as to why the out-of-county witnesses were not called in rebuttal.

Appellant takes us severely to task for the statement in the original opinion wherein we expressed the view that the evidence is sufficient without the confession. We see no useful purpose to be achieved from reviewing the facts in detail in support of this conclusion other than to observe that, independant of the confession and irrespective of the finding of the guns near where appellant’s car had passed, we note the following :

1. The store was burglarized by means of the breaking of the plate glass door; from it were taken certain guns, shells and a screw driver; and the car containing the burglars left town headed in the direction of Midland.

2. Within an hour thereafter, on the road to Midland, appellant was arrested; and a search revealed glass in his shoes, certain spent shells, which were proven to have been fired from the stolen guns, on the floorboard of his car, and a screw driver bearing the price mark in the handwriting of the owner of the burglarized store which had not yet been obliterated.

Appellant again urges Bill of Exception No. 9 as reflecting error. It is directed to a portion of the closing argument of the prosecutor wherein he concluded that the burglars had been seeking money and then commented on the fact that appellant was a good provider and that he so provided for his family by stealing.

It will be noted that appellant’s wife had furnished the information that he was a good provider; and the evidence shows that he was, at least on the night charged in the indictment, plying the trade of a burglar. We feel that the attorney’s argument was a logical deduction from the evidence and did not constitute error.

Appellant contends that the court should have charged on the law of exculpatory statements contained in the confession. He contends that such an issue was raised because in his confession he said, “I tried to get him to come on but he wouldn’t and he tried to get me to drive on and come back later.” Appellant then recounted how he participated with the others in the burglary.

“Exculpatory means clearing or tending to clear from alleged fault or guilt; excusing.” Moore v. State, 124 Tex. Cr. R. 97, 60 S. W. (2d) 453.

In Villarreal v. State, 143 Tex. Cr. R. 298, 158 S. W. (2d) 490, we held a charge on exculpatory statements unnecessary where in his confession the appellant recounted that he had remonstrated with his partners in crime at first, but then participated with them in their criminal enterprise. There, we said, “If it amounted to a protest, he quickly changed his mind and engaged with them, according to the language of the statement.” This is exactly what we find in the confession in the case at bar.

Remaining convinced that our original dispostion of this cause was correct, appellant’s motion for rehearing is overruled.