Abston v. State , 136 Tex. Crim. 152 ( 1938 )

We agree with the State's contention that nothing in this record indicates that appellant was in any way mistreated or threatened while in the grand jury room or while being returned from Anson to Haskell in company with Mr. Chapman and the two peace officers with them. The conduct which gave rise to the presumption against the State regarding the statement made by appellant before the grand jury occurred some forty-eight hours prior thereto, and induced a confession which this court felt impelled to hold inadmissible upon the former appeal as reported in 132 Tex.Crim. R., 102 S.W.2d 428. The facts upon which such holding was predicated are set out at some length in the opinions on the other appeal. What we say here will be better understood if read in connection with the other opinions. Appellant made several statements which did not meet with the approval of the officers who had him in charge and their conduct towards him was not abated until he gave a confession satisfactory to them. We have reexamined the present record looking for testimony upon which we could conscientiously base a holding that the presumption had been overcome that the confession here involved was made under the same influences which coerced appellant into making the former confession. We think the evidence before us does not justify such holding.

The uncontradicted fact from the significance of which we see no escape is that at the time of the former trial appellant appealed to the presiding judge for protection against certain officers. After being assured of such protection appellant then, and not until then, repudiated both confessions and testified on the trial in accordance with the first statement made to the officers — which was unsatisfactory to them — to the effect that he was not connected with the homicide. If appellant is guilty and goes unwhipped of justice of course it is to be regretted; so also is the well meant but reprehensible conduct of the officers which makes the exclusion of the confessions imperative. Under our oath to support the Constitution and laws of the state no other course appears open whereby the enforcement of the plain and positive mandate of our statute regarding confessions may be brought about than to hold the confessions inadmissible in evidence.

The motion for rehearing is overruled.