The appellant was convicted in the District Court of Fort Bend County for the offense of murder and his punishment assessed at death.
The most serious complaint made by appellant, who was very ably represented in this court as well as in the trial court, by attorneys appointed by the trial court, is that the confession alleged to have been made by the appellant to the district attorney was not admissible. The assault made on such confession being in effect that the same does not contain the statutory warning. The part of the confession attacked as being *Page 197 a warning insufficient to comply with the terms of Section 810 of the C. C. P. is as follows:
"I, Sam Phillips, after having been duly warned by R. A. Bassett, the person to whom this statement is made, that I do not have to make any statement at all, that any statement I make must be freely and voluntarily made, and that any statement I make can be used in evidence against me in the trial of any cause growing out of the facts concerning which this statement is made, do hereby make the following free and voluntary statement."
Appellant contends that the confession should not have been admitted because the warning in the confession is not in the language required by the Statute and that among other words it used the word "can" instead of the word "may" and does not use the word "offense". We cannot do otherwise than hold that the distinction made in the case between the use of the word "can" and the use of the word "may" is one without a difference. Robertson v. State, 111 S.W. 742. It is recognized by the profession generally that the late Judge Ramsey was one of the most careful as well as one of the most learned judges that ever graced any court, and yet in the Robertson case, in describing the requisites of the necessary warning to be given under Art. 810 of the C. C. P., that learned judge used a form of the word "can" rather than a form of the word "may". We do not regard the question as serious, and discuss it only because the matter is presented in a case carrying with it the extreme penalty of the law.
It is again contended that the confession should not have been introduced because it does not in any way identify the probable prosecution with the taking of the confession and does not in any way advise the defendant as to what offenses he might be prosecuted for. This contention cannot be sustained because the confession sets out the facts fully identifying the transaction with the one for which appellant was tried, and where a written confession sets out the facts identifying the transaction it need not state in terms the name of the offense with which the defendant was charged at the time of his arrest. Knuckels v. State, 55 Tex.Crim. Rep.; 114 S.W. 825; Johnson v. State, 149 S.W. 190.
Appellant also contends that the confession was not admissible because it was made in response to questions propounded by the district attorney who took the confession. We are also unable to agree with appellant's contention in this respect. It seems to be the established rule in Texas that after a proper *Page 198 warning a statement made by a defendant is not inadmissible simply because it was made in response to questions asked. Oliver v. State, 70 Tex. Cr. App. 140; 159 S.W. 235; Bailey v. State, 26 Tex. Cr. App. 715; 9 S.W. 270; Tidwell v. State, 40 Tex. Cr. App. 40, 47 S.W. 466; Carmichael v. State,54 S.W. 904.
An attack is also made on the confession because it appears from the testimony of one of the witnesses that prior to the time the confession was made the witness had told the defendant as well as other suspected parties, that it might be beneficial to them to tell what they knew about the killing. The record discloses that this statement was made to the appellant quite a while before the confession was made, and the testimony from the district attorney is clear to the effect that no coercion of any character and no hope of reward or inducement of any kind was offered to him at the time the confession was made. In addition to this, the record manifests the fact that the court properly submitted the voluntary character of the confession to the jury and instructed them correctly and properly that they should not consider it unless they found it was voluntarily and freely made. Under these conditions, we cannot do otherwise than hold that appellant's complaint at the introduction of the confession is without merit.
We have carefully considered appellant's objections to the court's charge submitting the voluntary character of the confession to the jury and conclude that they are without merit. It occurs to us that the court's charge on this question protected every right that the appellant had in the matter.
The facts show beyond dispute that the deceased met his death at the hands of the appellant, in fact this is admitted by the appellant in his testimony before the jury. It seems to be well settled in this State that the corpus delicti of a crime cannot be established alone by the uncorroborated confession of the party charged therewith, but if the fact that a crime is committed is proved aliunde, the confession of the party is clearly sufficient to connect him with the offense. Attaway v. State, 35 Tex.Crim. Rep.; 34 S.W. 112.
Under this rule we have no doubt but that the facts disclosed by this record are unquestionably sufficient to show the appellant's guilt.
The extreme penalty of the law has been assessed in this case and we have given the statement of facts a very careful and painstaking perusal, but we find nothing therein sufficient *Page 199 to suggest that so long as the death penalty is a part of the law of this State, it should not have been assessed in this case.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.