Conviction for murder; punishment, death.
Mr. Paddock keeps a store in Reeves County. He lived alone and slept in his store. He was seen alive on the 3rd of January 1926. That night his store burned. He has not been seen or heard from since. Amid the smoking ruins of the store were discovered burned parts of a body testified to by physicians as being parts of the body of a man. The heart, part of the shoulder, the ribs, parts of the arms, and some other parts of the body were left. The physicians testified that in their judgment these were human remains and remains of a large man. Paddock was shown to be a large man. He possessed and wore a silver watch of rather unusual appearance. This watch was found where the bones and flesh were found in the ruins of the store. Appellant was arrested, put in jail, and subsequently made a confession in which he said that he went with other *Page 162 Mexicans to the store of deceased upon an understanding and agreement that the latter should be killed and robbed. This is a sufficient statement of the facts.
Objection was made to the testimony of witness Armstrong as follows: "I remember the incident of the death of Mr. Paddock on January 4, 1926." We regard the objection to this, based on the proposition that the State had not proved that Mr. Paddock was dead, as being hypercritical.
Appellant objected to the introduction of his confession on the ground that no proper predicate had been laid for its introduction in that no sufficient evidence had been introduced to establish the fact of death; also that the confession was not made voluntarily, and was made under duress; also that the alleged confession was made through reliance on promises by the officers that they would protect and assist appellant; also upon the ground that the confession was irrelevant, inadmissible and prejudicial. Further than to set out these objections and to copy the confession, the bill of exceptions is wholly devoid of any showing of facts to support the contentions made. Manifestly such a bill of exceptions brings nothing before this court for review.
Another bill of exceptions sets out rather a lengthy statement of the sheriff which concludes with the statement that in the opinion of the witness appellant was not scared when he gave his confession. We are of opinion that appellant intended to address his objections to this last part of the testimony of the witness. We do not believe the answer of the witness to consist of such an opinion as is deemed objectionable. The officer testified that he had been watching the appellant closely, observed his manner and conduct, and heard him conversing with various people, and that he was not of the opinion that the appellant was scared. Even if the objections had been set out at length, we would not feel inclined to sustain them to this answer.
Complaint is made of the fact that the sheriff put a dictaphone in the cell occupied by appellant in the jail and a witness was permitted to testify that he identified the voice of the defendant by hearing a conversation over the dictaphone. The bill of exceptions does not set out that the witness testified to what the defendant said in such conversation, and we find ourselves unable to appraise the weight of such objection. The witness might have been well able to identify the voice by hearing it in the dictaphone. *Page 163
Another bill of exceptions complains at the reception of the testimony of witness Massey who said he heard the defendant make a statement about the death of Mr. Paddock down in the sheriff's office at night. This statement of the witness was objected to on the ground that there was a written confession, which was the best evidence. The bill of exceptions does not set out what statement was made by the defendant in the presence of the witness in the sheriff's office, hence we see no support for the objection.
Appellant asked a special charge, in effect, that the remains of Mr. Paddock might be identified by direct or circumstantial evidence, if sufficiently strong; but evidence of facts or circumstances which only tend to prove that Mr. Paddock was dead and which had no relevant bearing toward the identification of the alleged remains as those of W. G. Paddock cannot be used by the jury for the purpose of so identifying said remains. "In other words, the alleged remains cannot be identified, as required by law, by evidence which tends only to show the said W. G. Paddock's death; but the fact of death must be established to your satisfaction beyond a reasonable doubt, by evidence which identifies the alleged remains." This was refused by the court. We have no doubt of the sufficiency of the testimony to establish the death of Mr. Paddock, and that his death resulted from the criminal agency of appellant or appellant and others. The finding of parts of the body of a large man in the burned store of deceased on the night following his last living appearance; the finding of a watch identified by the watch-maker who had been repairing it as that worn by deceased, and others who had seen it in the possession of deceased, same being found in almost immediate contact with the charred remains of the body, coupled with the confession of the defendant, seem to us to present abundant evidence of the corpus delicti. The case on its facts presents strong similarity to the well known case of Kugadt v. State,38 Tex. Crim. 694. We think the court committed no error in declining to give the special charge.
We have tried to give to the facts in this case and the contentions made on behalf of this unfortunate man, our closest scrutiny, in view of the infliction of the extreme penalty of the law, but finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.