Whitfield v. State

As we understand appellant's motion for rehearing he contends that no evidence was heard in the trial court in determining whether certain confessions objected to by the defense were voluntary or not. Bill of Exceptions No. 9, which brings before us this matter, sets out at length the testimony both for the State and the defense adduced on the issue of the voluntary character of said confessions. The rule is that a written confession is admissible which shows on its face that it was made in accordance with our statute, provided the execution thereof by the defendant is proven. Its admissibility when thus offered is for determination by the court. Thompson v. State, 234 S.W. Rep., 401. If the truth of those matters upon which its admissibility rests be put in issue by proof attacking same, issues of fact are thereby raised, and, under our practice, may be submitted to the jury in the charge. This seems to have been done in the instant case. Since the determination of fact issues is for the jury, it was right for them to hear the evidence pro and con affecting the voluntary character of the confessions. In Williams v. State, 225 S.W. Rep., 177, cited by appellant, we held in effect that when proof offered as a predicate for the introduction of a confession, was conflicting as to the voluntary character of same, it is the practice to submit the issue to the jury, but we further held that the proof offered in that case showed that the confession was not voluntary and that the trial court should not have admitted the confession in evidence. We are not of opinion that the case before us is analogous to the Williams case, supra, in such regard. The testimony in this case is set out in said bill wherein appears the statements of various parties present when the confessions were made who assert positively that same were wholly without any improper influence.

Appellant urges that we did not consider what he calls his *Page 237 sixth assignment of error. It would seem that this court is unable to make it plain that the practice before us does not call for "assignments of error"; that same are to us but confusing. This case illustrates said proposition. In his brief we are referred to "Appellant's Sixth Assignment of Error (Bill of Exception No. 10 — 5th and 8th grounds of motion for new trial)." Referring to Bill of Exception No. 10, as same appears in the record it presents complaint of the refusal of a special charge to the effect that all exculpatory statements of the appellant herein appearing in his written confessions in evidence, must be taken as true unless proven untrue. Referring again to appellant's brief, we note that under the sixth "assignment of error" above referred to he discusses an entirely different matter from that raised by Bill of Exception No. 10 in the record. This serves to show why we have repeatedly stated that we look to bills of exception and not to assignments of error. However, the matters discussed in appellant's said sixth assignment will be noticed. In his motion for rehearing appellant complains of our failure to consider the matter thus brought forward. The complaint appears to be of the refusal of the trial court to give a special instruction limiting the testimony of witnesses Spence, Humphrey, et al., concerning the conduct and statements of appellant while under arrest. Just what acts and statements of the appellant are referred to in this refused instruction, we are unable to determine. The bill gives us no information on this point. The special charge is most general and singles out and refers to no testimony of any of said witnesses. Nothing in the document containing the refused charge shows when same was presented to the trial court, nor is there any bill of exception showing whether it was presented at the proper time. We are not at liberty to overlook these material defects in Bill of Exceptions No. 11 which complains of this matter, or to consider matters not properly before us. In his discussion of this "assignment of error" in the motion for rehearing, appellant also urges that the confessions should have been held inadmissible on the ground that he was not allowed to see an attorney at the time of or before same were made. We find in the record no bill of exception to any action of the court, or proceedings in this case, based on the proposition that appellant was not allowed to see an attorney, and for that reason are unable to apply either the argument or the citation of authorities in the motion relating to this point. *Page 238

Finding no error in the record, and believing that the case was properly decided on original presentation, the motion for rehearing will be overruled.

Overruled.