Appellant insists that the issue of duress was raised by his evidence to the effect that he was forced to commit the offense by another party and that the trial court was in error in not charging upon such issue. As stated in our original opinion no objections to the court's charge were presented and no special charge was requested calling the court's attention to the contention now made by appellant. The point now urged cannot be considered without entirely ignoring the provisions of articles 658, 660 and 666, C. C. P. We are more willing to give application of the articles of the statute mentioned because it appears to be extremely doubtful whether the fantastic story told by appellant raised the issue now contended for. If so, other undisputed evidence in the case practically demonstrates the falsity of any such claim on appellant's part.
Appellant also urges that his confession ought not to have been received in evidence because it was signed by him with his mark and that the state failed to show it had been witnessed by parties other than peace officers as required by article 727, C. C. P. No such objection seems to have been interposed when the confession was offered in evidence. In Walker v. State,53 Tex. Crim. 337, 110 S.W. 59, this court was construing the very statute which is now article 727, C. C. P. We quote from said opinion as follows: "In order to have taken advantage of the act of the Thirtieth Legislature (Laws 1907, p. 219, chap. 128) in regard to confessions, objection should have been interposed at the time the confessions were offered. It is not sufficient for objection to be raised for the first time on motion for a new trial."
So far as we are advised the rule there stated has been adhered to. The death penalty being involved, we have been at some pains to investigate the record to ascertain if in fact the confession was lacking in the formalities adverted to. It is signed by five persons as witnesses. Two of them are shown to have been peace officers. Unless we misapprehend the record it shows affirmatively that at least two of the other signing witnesses were not peace officers. A reinvestigation of the record in the light of the motion for rehearing fails to impress us that any error was committed in the disposition of the case originally.
The motion for rehearing is overruled.
Overruled. *Page 489