Appellant's motion for rehearing is predicated on the proposition that this court should hold as a matter of law that his confession introduced in evidence by the state was not voluntarily made. Under the peculiar manner in which the question came into the record the point is presented in an unusual way. From bill of exception No. 3 it appears that when the state sought to introduce the confession appellant requested that the jury be withdrawn which was done. In the jury's absence the testimony of State Ranger McWilliams and of appellant was heard by the court. The testimony of these two witnesses is incorporated in said bill. The court held the confession admissible but advised counsel for appellant that if the same evidence was introduced before the jury an issue of fact — which he found against appellant — would be raised and the issue would be submitted to the jury. For some reason neither McWilliams nor appellant were called to testify before the jury. The court evidently thought that other evidence which did go before the jury raised the issue as to the voluntary character of the confession and he submitted the issue to the jury. To sustain appellant's contention in that peculiar situation would demand of this court a finding upon an issue of fact contrary to the finding both of the jury and the lower court upon the same issue.
From appellant's testimony heard before the court it is plain that he was attacking the confession upon two grounds, first that he had been physically mistreated by the officers and the other that legal prosecution would proceed against his mother in the event he did not confess. The court and jury found against both of these contentions under the evidence and in doing so in no way abused the discretion vested in them.
In the course of Ranger McWilliams' testimony given before the court he said: *Page 636
"As to whether he (referring to appellant) was made any promise of any kind the only promise he was ever made at all by me, that is, if he would come clean and tell the truth about this thing, I would ask the district attorney, if he saw fit, to recommend to the jury a life sentence instead of death."
It is urged that by force of the statement above quoted the confession should be held involuntary. We are referred to McVeigh v. State, 43 Tex.Crim. Rep., 62 S.W. 757; White v. State, 105 Tex.Crim. Rep., 287 S.W. 273; Caudle v. State, 116 Tex.Crim. Rep., 33 S.W.2d 438, as supporting appellant's contention. If appellant was induced to make the confession by the promise of the officer under the authorities cited it should be held to have been inadmissible, but it is not claimed by appellant even in his own testimony given before the court that such promise operated on him in any way to secure the confession. He makes no mention of any promise having been made by McWilliams to him. Further it must be borne in mind that the confession introduced in evidence was not made for more than a week after appellant had been under arrest. McWilliams had many conversations with him and the evidence shows that appellant had made several statements regarding the killing. After checking these statements up they were found by the officers to be untrue whereupon they would again talk to appellant about it. McWilliams had made two trips with appellant from Austin in Travis county to Dawson in Navarro county. Whether the promises attributed to McWilliams were made to appellant while he was in jail in Austin or on one of these trips, whether soon after appellant's arrest or a short time before the confession was secured does not appear from the record. There is no evidence showing it to have been made at the time the district attorney in Corsicana took the confession nor immediately preceding the making of practically the same confession on the night before. If appellant had requested it he perhaps would have been entitled to an instruction to the effect that if the jury believed such promise had been made to him at a time previous to making the confession, and the same was operating on his mind at the time the confession was made, and he was induced thereby to make the confession the same should not be considered against him. No such request was made.
Realizing the seriousness of the matter under the penalty inflicted we have again carefully examined all the evidence upon the point under consideration whether it be found in the bills of exception or in the statement of facts and are constrained to overrule the motion.
Overruled. *Page 637