We are inclined to agree with appellant that we should not have said in our judgment of affirmance that the whole record before us shows that the instruments with which the deadly blows were inflicted, were found as a result of the confession of appellant, and such statement is withdrawn; but we can not accede to the proposition that there appears in said confession anything to cause doubt as to the identity of the woman therein referred to as the one killed at the time and place alleged in the indictment. Though the woman's name in the confession made on Tuesday following the killing on Saturday night, is stated as Erma Wilson, when in fact her name as alleged in the indictment and testified to by the witnesses was Erma Wilkerson, still the testimony clearly and unquestionably shows that the same woman was referred to and meant in said confession. As we read the record, no claim was advanced upon the trial by special charge asked or exception to the charge given, calling into question the identity of the woman killed with the one referred to in appellant's confession.
Appellant again insists that we erred in not reversing this case because the confession was improperly obtained. Whether it was so obtained was a controverted question, and the issue was in such condition of conflict and doubt as that it properly became a question of fact, and hence one for the decision of the jury under appropriate instructions. The trial judge submitted said issue as favorably to the accused as would seem at all reasonable or applicable, and we do not understand appellant to complain of the manner or form of such submission, but of the fact that the issue was left to the jury. We can not agree with appellant.
It is always to be regretted that one in authority, or in official position, should knock down and kick a prisoner in his custody, no matter what the provocation for such assault, but whatever assault was thus committed occurred at a time anterior to the confession, and disconnected therewith, and seemingly in no way related to the confession, or an effort to obtain or force same; and it appears from the record that the confession when taken was in the absence of the abusing party, and under circumstances indicating care, and the lack of excitement, pressure, threats or fear, and the jury were instructed *Page 566 fully as to their duty to pay no attention to such confession if there were any doubts as to whether same was freely and voluntarily made, hence we can not agree with appellant that a confession so made should be held by us as a matter of law inadmissible. The facts in this case show that on the day before the confession was made the sheriff of the county, in company with other men, was with appellant viewing the scene of the homicide. The sheriff knocked the appellant down and kicked him. The sheriff testified that he did this because he understood appellant to call him a liar. Nothing was said to appellant by the sheriff at that time or thereafter threatening him that anything would be done to him if he did not make a confession. The appellant was brought to the office of the district attorney the next day, and there alone with the district attorney he made a lengthy and detailed confession almost unparalleled in its frank brutality and horrible setting forth of a fearful assault and murder upon a defenseless woman. The district attorney testified that no one was present, and that no one made any sort of threat or effort to compel or force appellant to make the disclosures then made by him. About the time the confession was finished an officer came, and two witnesses were summoned from some nearby office who witnessed appellant's signature to the confession. We are unable to say now, and think we were right in our former opinion in holding that the admissibility of this confession became a question for the jury.
Being unable to agree with appellant's contention, the motion for rehearing is overruled.
Overruled.