Tidwell v. State , 40 Tex. Crim. 38 ( 1898 )

Appellant was convicted of the theft of a mule, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant insists that the court committed an error in admitting the testimony of D.P. Clark as to the defendant's alleged confession, on the ground that the same was not voluntary. We understand his contention to be, not that appellant was not properly warned, but that, after he was so warned, his confession or statement was elicited by interrogatories propounded to him by Clark. Because a confession may be elicited by questions is not alone sufficient to render it inadmissible. The (question must be of a character and propounded under circumstances in a manner calculated either to coerce or persuade. There is no evidence here of such facts. The rule with reference to dying declarations does not apply to a matter of this sort. There the statute requires that the questions be not calculated to induce the desired answer. Here the only criterion is that the confession must appear to be free and voluntary, and not made under coercion or persuasion. There is no question here that the confessions were not voluntarily made, and the court did not err in failing to instruct the jury on this subject as requested by appellant.

Appellant further urges that the corpus delicti has not been proven; and in that connection he insists that this must be proven independent of appellant's confessions. In answer to the last proposition, we would state the rule insisted on by appellant is not a sound one, but the confession can be considered along with the other testimony in order to establish the corpus delicti. See Anderson v. State, 34 Tex. Crim. 546; Kugadt v. State, 38 Tex.Crim. Rep.; Rice, Crim. Ev., p. 466, sec. 294. We have examined the testimony carefully with reference to the corpus delicti. The State's case shows that about the 6th of December the mule in question was in the pasture of one Harrison, left there with his mate by the prosecutor. This pasture was some four or five miles from Fort Worth. The mule was missed by the owner on the 6th of December, its mate being still in the pasture. Search was made for it for one or two days without finding it. About the 10th of December the mule was shown to be in Gainesville, in the possession of a party there. It is said that the pasture fence was down in several places, and that the mule might have strayed off. There is no testimony, however, tending to show that its range was in the direction of Gainesville, and none tending to suggest any reason why it should have left its mate and gone a distance of about forty miles. At the least, this testimony tends to show that said mule was stolen. Now, if, in connection with this, we take the confession of appellant, the evidence becomes very strong to that effect. Indeed, his confession explains in a most reasonable and plausible manner the absence of the mule from the Harrison pasture after the 6th of December, and its presence in Gainesville on the 9th or 10th of December; especially when we take into view the fact that appellant was seen in proximity to the Harrison pasture on the 7th of December, and that he was found in Gainesville on the 10th. We would moreover observe, in connection with this matter, that the corpus delicti does not appear to have been contested by appellant, on the trial. The very defense set up by him was that, while the mule was stolen, he was not guilty; that he merely assisted in driving the same from the pasture to Gainesville as a hired hand, without knowledge that the said mule was being stolen.

Appellant also insists that the court should have given his special instruction to the jury, to the effect that they must take all the confessions of the defendant made at the same time, and, if any portion of such confession was exculpatory, the State must show that the same was untrue before they could convict. We understand that the court in effect gave the jury this instruction. The exculpatory fact stated by him was that he was a hired hand; and the court gave this defense in charge to the jury, instructing them to acquit appellant on that ground if they believed he was such hired hand. Nor do we believe that the charge of the court on this defense of appellant being a hired hand was calculated to mislead or confuse the jury. While the charge is not artistically drawn, yet the jury were distinctly instructed, before they could convict appellant, that they must believe beyond a reasonable doubt that he was a principal in the offense charged, and, if they believed that the only connection appellant had with the taking of the said mule was that of a hired hand in the employ of one Elzie Isham, to acquit the defendant. The doctrine of principals had been previously defined by the court; and in this connection it was not error for the court to state to the jury that "any person who agrees to the commission of an offense, and is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act." As an abstract proposition this is correct; but there is no pretense that the proof merely showed this. If defendant was present at all, he rendered actual and positive aid in the commission of the offense; and, if he was not merely a hired hand, he was unquestionably guilty of assisting in the theft of said mule.

The court did not err in its response to the interrogatory propounded by the jury. He gave a direct answer thereto, and there was no necessity of giving appellant's requested instructions. In fact, the instruction given and that requested were the same thing.

The objection of the defendant to the charge of the court on the ground that it failed to instruct the jury that they could not convict defendant on his confession unless the confession was corroborated by other evidence tending to establish the corpus delicti, we think we have heretofore sufficiently treated. The State did not rely alone on appellant's confession to establish the corpus delicti, but there was other testimony, we think, sufficient to establish the corpus delicti, outside of the confession; and we do not think that the necessity arose in this case for the court to have singled out appellant's confession, and to have given the requested charge. If there had been no proof in the case but confessions to establish the corpus delicti, or if the extraneous proof had been very weak or meager, then the requested instruction might have been called for. But this was not so. And, beyond this, if the corpus delicti had been based alone on the confessions, the court should have instructed an acquittal, or, in case of conviction, the point could be raised in the motion for a new trial on the insufficiency of the evidence. We do not deem it necessary to discuss this matter further, but we refer to it because it was strenuously insisted on in the argument. In our view there was no error in the record, the verdict is amply supported by the testimony, and the judgment is affirmed.

Affirmed.

HURT, Presiding Judge, absent.

ON MOTION FOR REHEARING.