Beecher v. State

PER CURIAM.

On June 15, 1964, Johnny Daniel Beecher, a convict, who may hereinafter be referred to as “defendant,” “appellant,” or “Beecher,” escaped from a road crew in Jackson County while the crew of convicts was building a fence near the right-of-way of a highway. The place from which the defendant escaped was about eight-tenths of a mile from the home of Mr. and Mrs. Raymond Chisenall who lived in the Fabius community. Mrs. Chisenall’s body was found the next day, some distance from her home, in a shallow hole covered with dirt and leaves. Her feet and hands were tied. She was gagged and blindfolded. Expert testimony and other evidence revealed that she met her death by manual strangulation and that she had been raped.

While fleeing from Tennessee police officers near South Pittsburg, Tennessee (which is located near the State line which separates Jackson County, Alabama and the State of Tennessee), Beecher was shot in the leg by a rifle bullet and arrested during the early morning of June 17, 1964. He was carried to a hospital in South Pittsburg and given first aid treatment. Evidence depicted his condition when he arrived at the hospital as being in a great amount of pain, he having sustained a gunshot wound in his leg which shattered his tibia. He was given injections of morphine, one intravenously and one intramuscularly.

His leg was not set at the Tennessee hospital, but splinted so he could be transported by ambulance to Kilby Prison Hospital near Montgomery where he received treatment for his leg that day. Later his leg was amputated.

On July 29, 1964, the Grand Jury of Jackson County, Alabama returned an indictment against the defendant. He was tried on a count charging him with the first degree murder of Martha Jane Chisenall, found guilty, and sentenced to death. On appeal, this Court affirmed that judgment on October 6, 1966. Beecher v. State, 280 Ala. 283, 193 So.2d 505.

Thereafter, defendant filed in the Supreme Court of the United States a petition for certiorari to review the opinion and judgment rendered by this Court. The Supreme Court of the United States granted certiorari and on October -23, 1967 reversed the decision of this Court. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35.

On January 18, 1968, defendant was again indicted by the Grand Jury of Jackson County, Alabama, for murder in the first degree of Martha Jane Chisenall.

On January 20, 1969, the Circuit Court of Jackson County, Alabama, heard testimony on the defendant’s Motion for Change of Venue. The transcript of the evidence taken at said hearing indicates that the State, either before or at the time of the hearing, nolle prossed the original indictment pending against the defendant. At the conclusion of the hearing, the court granted the Motion for Change of Venue, changing the situs of the trial to Cherokee County, Alabama, and scheduling arraignment for January 22, 1969, in the Circuit Court of .Cherokee County, Alabama. Defendant was duly arraigned at the appointed time on the indictment of January 18, 1968, and entered pleas of “Not Guilty” and “Not Guilty by Reason of Insanity.” Trial of the cause was set for February 4, 1969.

On February 4, 1969, immediately prior to the commencement of trial, the defendant filed motions seeking to have the court permit the examination of jurors individually, in groups of six, and in groups of twelve, respectively, outside the presence of the other jurors. The lower court granted the motion to examine the jurors individually, but not outside the presence of the other jurors; overruled the motion to examine the jurors in groups of six; and granted the motion to examine the jurors in groups of twelve.

At the conclusion of the trial of the cause on February 5, 1969, the jury returned a verdict of guilty and imposed the death penalty. Judgment and sentence on the same date were in accord with the verdict of the jury.

This appeal is perfected under the provisions of the automatic appeal statute applicable in cases where the death penalty is imposed. Section 382(1) et seq., Title 15, Recompiled Code 1958; Act No. 249, Gen. Acts 1943, p. 217.

The defendant was represented in the trial below by three court appointed attorneys. He is represented on this appeal by one of the same attorneys, as well as by an additional attorney who did not participate in the trial. All attorneys involved in the trial and this appeal were appointed by the trial court.

The defendant’s contention in brief complains of alleged error on the part of the trial court in admitting into evidence the testimony of Dr. William L. Headrick, Jr., the physician who treated the defendant shortly after his apprehension in Tennessee, concerning inculpatory statements allegedly given by the defendant to Dr. Headrick at the time of said treatment. The defendant argues that the alleged confession was inadmissible because “ * * * (1) the confession was given involuntarily; (2) the confession was given while the defendant was in the custody of the police or otherwise deprived of his freedom by the authorities and was subjected to questioning without being advised of his constitutional rights as provided for in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and later United States Supreme Court cases.”

The rule is well-established that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial judge to determine whether or not a confession is voluntary, and unless it so appears, it should not be admitted. Duncan v. State, 278 Ala. 145, 176 So.2d 840; and cases therein cited.

A confession is involuntary unless it is “the product of a rational intellect and a free will.” Blackburn v. State of Alabama, (1960) 361 U.S. 199, 208, 80 S.Ct 274, 280, 4 L.Ed.2d 242; Davis v. State of North Carolina, (1966) 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. It is not the product of a rational intellect and a free will if the petitioner’s will to resist confessing is overborne. Rogers v. Richmond, (1961) 365 U.S, 534, 81 S.Ct. 735, 5 L.Ed.2d 760. An accused’s will can be overborne by pressures engendered by physical or psychological coercion (Rogers v. Richmond, supra) or insanity (Blackburn v. Alabama, supra). These principles were reiterated in the case of Townsend v. Sain, (1960) 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, wherein the Supreme Court of the United States stated the following:

“Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. * * * ”

Notwithstanding these comments by the United States Supreme Court, we understand its holding in Townsend v. Sain, supra, to be limited to two propositions: Did Townsend’s petition for habeas corpus allege a deprivation of his constitutional rights? Was the District Court required to hold an evidentiary hearing to determine these constitutional questions? Both questions were answered in the affirmative by the court.^{1 and 2} It did not establish any novel standard relating to the admissibility of confessions.

Townsend’s petition was based upon allegations : that at the police station he became ill from the withdrawal of narcotics and was administered scopolamine (hyoscine) and phenobarbital, combined, by a police physician; that the drug scopolamine has the properties of a “truth serum,” and that the injection produces a physiological and psychological condition adversely affecting the mind and will; that this state removes one from reality, one is not able to see or feel properly, one loses one’s ability to withstand interrogation, and produces a physiological and psychological state susceptible to interrogation resulting in confessions; and that the injection in this case caused him to confess. Townsend also alleged the police doctor zoillfully suppressed this information and the identity of hyoscine and scopolamine. The respondents admitted that Townsend was entitled to relief if the allegations of his petition are taken to be true.

In the course of its opinion the Supreme Court, in Townsend, simply reiterated heretofore established standards governing the admissibility of confessions into evidence stating that if one’s “will was overborne” or if one’s confession was not “the product of a rational intellect and a free will,” one’s confession is coerced and inadmissible. The opinion then concluded that these standards are as likewise applicable “whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement.” (372 U.S. at page 307, 83 S.Ct. at page 754.)

Nevertheless, we do not see that the court, in its holding, has articulated any new, different, or unique standards relating to confessions except to say existing standards apply to drug-induced statements. So, we must judge the confession in the instant case by the existing standards of voluntariness.

This brings us to a consideration as to whether the statement Beecher made to Dr. Headrick meets these standards of voluntariness.

A hearing was conducted outside the presence of the jury on the question of the voluntariness of the confession given by defendant to Dr. Headrick at the South Pittsburg, Tennessee, hospital in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. During the course of such hearing Dr. Headrick testified as follows:

“Q. I will ask you if you saw Johnny Daniel Beecher on June 17, 1964?

“A. Yes, sir, I did.

“Q. And where did you see him ?

“A. In the emergency room at South Pittsburg Municipal hospital.

“Q. What time of day did you see him?

“A. About 4:45 A.M. on 6/17/64.

‡ ‡ ‡ ‡

“Q. Doctor, how long did he stay in your office or in the treatment room there ?

“A. I am not exactly sure, but I would guess maybe an hour to an hour and a half.

“Q. ' I will ask you if he made a statement to you at that time ?

“A. Well, we talked.

“Q. All right.

“A. Yes, sir, we talked.

“Q. Did you ask him any questions about the crime or what all he had done or did he just make a voluntary statement to you ?

“A. I am not exactly sure if I asked him specific questions but he told me quite a bit about it.

j]í j¡í ‡ >{; afc ‡

“Q. Now, you didn’t make any threats or offer him any promises of award (sic) or immunity if he would make a statement to you, did you?

“A. No, sir.

“Q. What did he say to you at that time?

“A. Well, I guess originally he started off telling me about his life, that his mother had died when he was growing — ■ very young and his father left the family and he had had a rough time all of his life and he had to dig in the ground for roots for food and steal and he got in trouble and what not to exist.

“Q. What if anything did he say about seeing Martha Jane Chisenall, the woman that was raped and killed?

“A. Well, he told me he had seen her up on her front porch several times and he had made up his mind no matter what the cost he was going to have some of that. He also told me he raped her three times. He didn’t mean to kill her but the people were coming up the mountain waiting for — hunting for him and she wouldn’t be quiet and he had to kill her—

“MR. ARMSTRONG: We move the answer be stricken, Your Honor.

“MR. BLACK: The jury is not here.

“THE COURT: How much morphine did you give him?

“A. I gave him a quarter of a grain intraveneously (sic) and a quarter of a grain muscularly.

“THE COURT: How did that act on him?

“A. Relieved his pain. That is an—

“THE COURT: What affect (sic) would it have on his mental capacity ?

“A. Well, morphine will relieve pain and make a patient have a sense of well-being. It doesn’t — unless you get a tremendous overdose where it supresses (sic) respiration or makes them unconscious — -

“THE COURT: This particular case, in your opinion, did he know what he was talking about?

“A. Yes, sir.

“THE COURT: And know the meaning of it ?

“A. Yes, sir.

“THE COURT: Realized it?

“A. This dosage was not even big enough to completely relieve all of his pain.

“THE COURT: All right. Go ahead.”

At this hearing on the voluntariness of this confession (outside of the presence of the jury) the defendant testified that he remembered nothing after the doctor gave him a shot, that the effect of the morphine put him at ease; “it kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed”; and, that the morphine did not make him unconscious, stating morphine doesn’t make you unconscious. He further testified that he doesn’t know if he acted normal or not, since he did not remember talking with the doctor after the shots, and that his mind was a blank after the shot.

Dr. Headrick also testified that the dosage of. morphine administered was not enough to alleviate all of defendant’s pain, stating he still had pain when they tried to move him; that he was trying to make him comfortable and to relieve his pain.

Dr. Headrick, after the lower court ruled that the confession was admissible, and during the presentation of his testimony to the jury, testified that the morphine would not affect Beecher’s mental capacity in any way, unless he became unconscious, stating if he had an overdose, respiration would be affected and he would be unconscious. The doctor testified that he did not give him an overdose and Beecher did not become unconscious.

This is no station house interrogation by police officers as was the case in Townsend, supra. In fact, it is not clearly established that the doctor even questioned defendant. In one instance, the doctor related: “I am not exactly sure if I asked him specific questions but he told me quite a bit about it.” In another place, the doctor indicated: “I think I asked him why he did it.” All this was in the course of treatment of the gunshot wound in the presence only of defendant, the doctor and his nurse,³ and, after the doctor had also given him food, water and cigarettes. Further the doctor stated he had made no arrangements with the authorities to question defendant.⁴

It seems to us that this case bears little factual resemblance to Townsend v. Sain, supra, where a truth serum was allegedly injected into a defendant at the station house by a police surgeon before questioning by police officers.

In Townsend v. Sain, supra, the drug administered to Townsend was shown to have been a combined dosage of Ys grain of phenobarbital and %30 grain of hyoscine. It was alleged that it had not been disclosed that hyoscine is the same as scopolamine or that the latter is familiarly known as “truth serum.” On appeal in that case the Supreme Court of the United States stated:

“ * * * It is difficult to imagine a situation in which a confession would be less the product of a free intellect; less voluntary, than when brought about by a drug having the effect of a ‘truth serum.’ * * * ” [Emphasis supplied] (372 U.S. at 307-308, 83 S.Ct. at 7S4.)

The defendant has made no allegation nor presented any evidence in the case under review tending to classify morphine as a “truth serum,” nor tending to show that morphine produces the same effects as a “truth serum.” Further, Dr. Headrick testified extensively, in answer to questions propounded by counsel and the court, as to the dosage, mode of administration, and effects of morphine on this defendant. There is nothing in the record that satisfies this court that the administering of morphine in this case either overbore “defendant’s will” or that his confession was not “the product of a rational intellect and a free will.”

We are of the opinion that the able trial judge correctly ruled that the confession given by the defendant to Dr. Headrick in the emergency room, considered independently, meets the test of voluntariness subscribed to in this State, as well as that proscribed by Federal constitutional provisions.

The defendant further argues that the confession given to Dr. Headrick was involuntary and inadmissible in evidence, based on what the Supreme Court of the United States said in Beecher v. Alabama, supra, relative to confessions allegedly given by the defendant before and after the confession in question. The defendant argues: that the Supreme Court of the United States held the confession allegedly given by the defendant, at the time of his apprehension by Tennessee police officers, was a product of “gross coercion”; that the confession given some five days later in Kilby Prison hospital to State investigators was also involuntary because there was “no break in the stream of events”⁵ from the time of the first alleged confession until the confession at Kilby Prison; that therefore the confession allegedly made to Dr. Headrick, in the interim and within an hour after the defendant’s apprehension in Tennessee, was made at a time when there was also “no break in the stream of events,” and was therefore involuntary and inadmissible.

During the first trial of this cause, the State introduced evidence tending to show that the confession given by the defendant to State investigators in Kilby Prison hospital was voluntary. No refutative evidence was offered by the defendant. The trial court found the confession to be voluntary. It was only on the hearing on the motion for a new trial that the defendant testified as to coercive acts of the arresting Tennessee police officers at the time of his apprehension and alleged first confession. The State offered no evidence on the hearing of the motion for a new trial to refute the defendant’s contentions. In that state of the record, the Supreme Court of the United States rendered its decision in Beecher v. Alabama, supra, based on what that court referred to as “uncontradicted facts” pertaining to “gross coercion” (in the words of that court) at the time of arrest. In that opinion the court found the admission of the confession at Kilby Prison required a reversal.

In the trial from which this appeal is perfected, the lower court heard testimony, outside the presence of the jury, presented by the State tending to show the voluntary nature of the confession allegedly given by the defendant to Tennessee authorities at the time of his arrest. This evidence showed that after Beecher was shot, he told Chief of Police Dick Burroughs of South Pittsburg, Tennessee, his name was Johnny Beecher and he was the man they were hunting in Alabama.

The defendant thereafter took the stand (outside the presence of the jury) to testify as to the circumstances attendant to his apprehension and alleged confessions. His testimony was essentially similar to that given at the hearing on motion for a new trial. The defendant contended that he was shot in the leg; that he fell to the ground; that the Chief of Police came up with a gun in his hand and asked, “Why did you kill that white woman?”; that the Police Chief placed the pistol on his nose; that another law officer fired a rifle by the side of his ear; that he then admitted raping and killing Mrs. Chisenall.

Police Chief Dick Burroughs, South Pittsburg, Tennessee, generally refuted the defendant’s version of the circumstances surrounding his confession. Pie denied asking defendant why he killed the white woman. The police chief said the other officer did fire the rifle but only to signal the defendant’s capture. Although he was not sure about the position of the rifle, Beecher was more than two or three feet away when the rifle was fired; and the rifle was “not down right at the head of the defendant.” Pie also denied making any threats to the appellant. Chief Burroughs testified he did not put a pistol on •defendant’s nose, nor did anyone else.

The State did not offer this confession in evidence, but the trial judge did admit the confession to Dr. Headrick. Prior to the trial judge’s ruling allowing the Dr. Headrick confession to go to the jury, defense attorneys assigned the “no break in the stream of events” contention as an objection. From the record it is clear that the trial judge considered this contention. The “no break in the stream of events” contention was buttressed by so-called “uncontradicted” facts in the first trial, but in this trial this was not true. This court holds that the “no break in the stream of events” contention in this instance is without merit.

The defendant’s second major contention is that the confession allegedly made to Dr. Headrick was inadmissible for failure of the authorities to comply with the requirements of Miranda v. Arizona, supra.

What this court said in Truex v. State, 282 Ala. 191, 210 So.2d 424, wherein the defendant had made an inculpatory statement to a Mrs. Kendrick without the benefit of the so-called Miranda warnings, is dispositive of the defendant’s contentions herein:

“The objection to this testimony rests in the contention that Mrs. Kendrick failed to apprise the defendant of his constitutional right to remain silent. We are constrained to agree with the Supreme Court of Nevada that the substance of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) have no application when confessions or admissions otherwise admissible are given to persons who are not officers of the law nor their agents. Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967).”

See also Anno.: “What Constitutes ‘Custodial Interrogation’ Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation,” 31 A.L.R.3d 565, and particularly the cases under Section 26 entitled, “Doctors or Nurses,” starting on page 669.

In response to the defendant’s Motion for Change of Venue, the lower court, after a hearing on the motion in open court, granted said motion, changing the situs of the trial from Jackson County to Cherokee County, Alabama. The defendant, in the assignment of error, contends that the failure of the lower court to grant the change of venue to a more remote county constituted error prejudical to the defendant.

On an application for a change of venue, and on granting the motion for removal, the trial court must decide what is the nearest county free from objection. Section 267, Title 15, Recompiled Code 1958; Patterson v. State, 234 Ala. 342, 175 So. 371, cert. den. Patterson v. State of Alabama, 302 U.S. 733, 58 S.Ct. 121, 82 L.Ed. 567.

The lower court conducted an extensive examination of numerous witnesses in seeking to determine if the defendant could obtain a trial in Jackson County, Alabama, free from prejudice. In its examination, the lower court heard evidence not only as to any prejudice existing in Jackson County, but also as to prejudicial effects, if any, in nearby counties to which radio, television and newspaper coverage extended. The mere fact that such publicity has been dispersed does not, in itself, mean that a defendant cannot get a fair trial.- Mathis v. State, 283 Ala. 308, 216 So.2d 286, reversed as to death sentence on other grounds and remanded to Supreme Court of Alabama for further proceedings, 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed.2d 855. Mrs. Chisenall met her death on June 15, 1964. The order moving the trial to Cherokee County, which is not an adjoining county to Jackson County, was dated January 20, 1969. We are of the opinion that the lower court did not abuse its discretion in granting the change of venue from Jackson County to Cherokee County, Alabama

During the course of the trial, three black and white photographs were introduced into evidence by the State. The photographs depicted the deceased’s body as first discovered, on a stretcher after removal from the shallow grave, and in the coroner’s office, respectively. Each of the photographs met the test of having some tendency to prove or disprove a disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and was not improper. Baldwin v. State, 282 Ala. 653, 213 So.2d 819.

The lower court permitted, over the defendant’s objection, the State Toxicologist to testify concerning the condition of the deceased’s genital area. Such evidence, in addition to being part of the res gestae, tends to shed light on the acts, motive and intent of the defendant at the time of the offense and was properly admitted. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Garner v. State, 269 Ala. 531, 114 So.2d 385.

The defendant’s contention that the statements made to Dr. Headrick and related by the latter in his testimony are privileged is without merit. As communications to physician or surgeon by a patient or one seeking professional advice are not privileged under common law, no such privilege exists in Alabama, in the absence of a statute creating it. Dyer v. State, 241 Ala. 679, 4 So.2d 311. There is no such statute in Alabama.

The lower court overruled the defendant’s motions to examine the jurors individually and in groups of twelve respectively, outside the presence of the other jurors. This was without error. Jurors may be qualified on voir dire in groups at the discretion of the court. Seals v. State, 282 Ala. 586, 213 So.2d 645; Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. den. 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82. The defendant was not entitled to examine each prospective juror outside the presence of the other jurors. Seals v. State, supra.

The defendant assigns as error his removal from Tennessee to Alabama without first having been taken before a magistrate in Tennessee and without having signed a waiver of extradition as required by law. The transcript of the evidence shows that the defendant did sign a waiver of extradition prior to being removed from the State of Tennessee. Further, the testimony of Dr. Headrick tends to show that, at the time the defendant signed the waiver of extradition, his (the defendant’s) mental faculties were in no sense impaired to the extent that he was not cognizant of what he was doing. We fail to find any infringement of the defendant’s constitutional rights, State or Federal, in the procedure followed relative to his removal from Tennessee to this State shortly after his apprehension.

\

Mindful of our duty in cases where the death penalty is imposed, we have reviewed the entire record thoroughly for error, whether assigned or not. We have commented herein on most of the numerous assignments of error set forth by the defendant. The others we find to be palpably without merit and pretermit any discussion thereof.

A majority of the justices concur in the above opinion, namely, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ.

1 and 2 f. and 2.

372 U.S. at page 307, 83 S.Ct. 745.

372 U.S. at page .295, 83 S.Ct. at page 748, in tlie opening sentence in the opinion Mr. Chief Justice Warren’s statement: “This case, in its present posture raising questions as to the right to a plenary hearing in federal habeas corpus * * * ” clearly indicates the question before the court was procedural.

3 . “Q. I will ask you, doctor, did you administer treatment to him at that time?

“A. Yes, sir.

“Q. What was that?

“A. He had a gunshot wound of the leg and the tibia was shattered and the leg was cleansed and the leg was packed with gauze and he was given a medication for pain and the wound wrapped and strapped so he could be transported.

“Q. What kind of medication did you give him?

“A. Morphine.

“Q. Was anybody there besides you and your nurse and the defendant?

“A. At one time there was more people in the emergency room hut they were cleared from the emergency room and during most of our conversation after the treatment had been accomplished it was just the nurse and Mr. Beecher and I.

“Q. Now, did you also give him some food and water and cigarettes?

“A. Yes, sir.”

4 . “THE COURT: Do — did you have any arrangements made with these policemen ' to get any information?

“A. No, sir.

“THE COURT: For them?

“A. No, sir.

“THE COURT: Did this man volunteer to make this statement to you or was this in response to questions you asked?

“A. I was trying — X would almost like to talk off the record if I may, if it is possible. It doesn’t make any differenee. I felt sorry for this man. He looked almost like an animal. I was trying in the best way that I could to make him comfortable, of course, to relieve his pain, offer him cigarettes and that sort of thing to make him comfortable. He hadn’t eaten in sometimes either. I just stayed in the emergency room and talked to him because he was going to be transferred to Kilby Prison, that was the word that was given to me. I was not to take him to the operating room and to start to work on his leg.

“MR. BLACK: In other words, the statement he gave you was not — you were not probing him?

“A. No, sir, I was not probing him except I will take anybody’s history when they come into my office. Of course—

“MR. WEEKS: Doctor, I believe you stated whether or not you were not sure whether you asked him specific questions ?

“A. I can’t remember what my comments were five years ago.

“MR. WEEKS: Then, you could have asked him specifically what questions?

“A. I think I asked him why did he do it. That is what got the thing started as far as concerning—

“THE COURT: Is that all you remember you did ask him, why did you do it?

“A. Yes, sir.

“THE COURT: And he told you the whole story then?

“A. He started hack in his childhood and telling us the whole story.”

5 . See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338,18 L.Ed.2d 423 (1967).