Rios v. State

Appellant's motion for rehearing is predicated largely upon the insistence that we were in error in disposing of the question raised by bill of exception number nine. As we understand the record the matter therein complained of arose in the following manner. After making the preliminary proof the state put in evidence a written confession of appellant of date April 10th, 1927, in which appellant said that he killed deceased by shooting him with a 32 caliber pistol; took $6 in money from the dead man's pocket and also took his necktie out of the car. In this confession appellant implicated no one but himself. At the time such confession was made the authorities were holding in jail one Ybarro who was supposed to have been connected with the killing. The sheriff was cross-examined at length by appellant as to another confession which had been taken soon after the killing but which at the time of the examination of this witness had not been placed in evidence by the state, and the sheriff was also questioned as to whether he went to the jail to secure the second confession. On redirect examination in response to the question why he (the sheriff) went to the jail for the purpose of securing the second confession — being the one already in evidence, — the sheriff said it was because appellant wanted to correct his first confession in which he had implicated Ybarro, saying the latter had nothing to do with the killing. Later in the trial the first confession which was taken on March 12th, 1927 was placed in evidence by the state, wherein appellant claimed that Ybarro was present when appellant shot deceased, and aided appellant in taking the body from the car and was a party to taking deceased's property. The sheriff had also testified that prior to making any written confessions appellant had stated to the officers that he had a tie which was taken from the dead man and had gone with the officers to appellant's house and there secured and delivered to *Page 77 the officers the necktie which was identified as belonging to deceased and which was introduced in evidence. Under all the circumstances appearing in the record and in view of the two confessions which were introduced we feel constrained to adhere to our original holding that a reversal could not properly be predicated upon the incident complained of in bill of exception number nine. Johnson's case, 1 S.W.2d 896 presents a case very similar upon the facts.

The other matters urged in appellant's motion have been carefully considered and we are not lead to believe therefrom that our original opinion was erroneous in the particulars complained of.

The motion for rehearing is overruled.

Overruled.