Appellant was convicted for murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of thirty years, and he appeals.
Appellant contends the court erred in refusing to give certain special instructions requested by him, in which it was sought to present his theory of the case. They are based upon the proposition that the uncorroborated confession of an accused is not sufficient to justify a conviction. That is a very sound proposition of law; but, as we understand the record, it has no application to this case, The evidence places beyond question that deceased (Charley Williams) was in a ballroom, engaging in the festivities, when some one approached from the outside, and shot him through the window. It is also shown that at the time this shot was fired two shots were fired in the ballroom, one taking eftect in the leg of one Gentry. There is no direct positive evidence as to who fired the shot from the outside, except the confession of defendant. His confessions are clear and unequivocal. He states that, while standing outside, he shot deceased through the window. It is well settled that the confession of the accused alone will not justify a conviction. This question has been frequently decided by various decisions in this State; but, so far as we are aware, it is settled that, the death of the deceased being shown to have been brought about by the criminal agency or procurement of some one, the confession is sufficient to connect the party making the confession with the crime. The finding of the body was not in pursuance of appellant's confession. He was shot down in the midst of an assembly of people engaged in dancing, he was seen by every one present to have been murdered, shot in the back, find through the window, the assassin standing on the outside. The rule sought to be enforced by appellant has no application to this case. Attaway v. State, 35 Toxas Crim. Rep., 403; White v. State, ante, p. 366.
Appellant requests the court to charge the jury that the confession must be freely and voluntarily made; that the accused should be warned that he need not make the statement, and, if he did, it would be used against him; that such confession must be corroborated by facts and circumstances other than the confession itself; and that, unless all these matters had been shown, the accused should be acquitted; or, if they had a reasonable doubt that all of the matters had been shown, to acquit. The point insisted upon seems to be that at the time the confessions were made one of the officers present failed to hear the confession testified to by the other officer, and therefore there was an issue raised as to whether this confession was freely and voluntarily made. It is true Aiken testified that he did not hear the confessions about which Lipscomb testified, but he states that Lipscomb informed him in a whisper directly after it occurred that defendant had made the confession. The mere failure of Aiken to hear the confession of the accused and the warning given by Lipscomb, does not raise an issue as to the correctness of Lipscomb's testimony as presented. If Lipscomb had testified to the warning and subsequent confession, and Aiken had testified that the accused was not warned, then it would have *Page 640 become the duty of the court to submit the question in the charge as to whether the warning was in fact given. But Aiken does not contradict Lipscomb on this point. The mere failure of a witness to hear statements about which other witnesses testify ordinarily raises no issue of fact.
This is a companion case to that of cause No. 1743, Pryor v. State, post, p. 643. We reversed that judgment because of the admission of certain testimony specified in the bills of exception. These questions are not raised in this record. The same testimony, in substance, went before the jury in this case without objection, and whatever error there may have been was waived because the points were not reserved. The evidence, in our opinion, fully justified the conviction, and the judgment is affirmed.
Affirmed.