Appellant has presented a motion for rehearing upon our opinion of affirmance delivered November 12, 1941. The State has filed a reply to said motion and appellant in turn has filed an answer to the State's reply. *Page 459
The controversy pro and con of the State and appellant is clearly understood, and the responsibility resting upon the court is fully realized.
It may be stated bluntly that no conviction could be sustained in the present case without the confession of appellant. Being fully conscious of such fact we have again patiently and painstakingly re-examined the evidence upon which the use or rejection of such confession turns. The result of the evidence upon that issue, we think, is fairly and sufficiently set out in our opinion of affirmance. We are unable to see just how the trial court could in view of the evidence have handled the matter otherwise than he did by submitting the issue to the jury, without ignoring our decisions upon the question. See 18 Tex. Jur., p. 188, Sec. 103 Branch's Ann. Tex. P. C., p. 41, Sec. 66, and authorities cited under the text in each. See also Wharton's Cr. Ev., Vol. 2, 10th Ed., p. 1423, and notes thereunder showing cases from eighteen states where the same rule is applied as prevails in this state.
It is impractical to undertake to state here the evidence in detail bearing upon the issue under consideration. It would be useless and without profit to write further, as our conclusions would be only repetition of what has already been said in our opinion of affirmance.
Appellant's motion for rehearing is overruled.