— The offense is murder; the punishment, death.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Rebecca Coursey by beating her with a hame.
C. Matura, an accomplice witness, testified that he killed deceased by beating her with a hame. According to the version of the witness, appellant induced him to commit the homicide. He testified that appellant was near the house when he killed deceased. The State introduced in evidence three confessions of the appellant, in each of which it was stated that appellant induced Matura to commit the homicide, and that appellant was near the house at the time the offense was committed. It it inferable from the record that appellant kept watch while Matura killed deceased.
On the trial appellant repudiated his confessions. It was his version that he had nothing to do with the transaction resulting in the death of deceased. He testified that he had been coerced to make said confessions. Touching his first statement, appellant testified that the officers had threatened to kill him; that one of the officers placed a garment around his face and smothered him; that said officer struck him; that after he had been mistreated in the manner indicated he asked to be returned to jail, with the statement that he would tell the truth; that after his return to the jail he was required to stand up for many hours, during which time he was constantly questioned by the officers; that he was given no water during the time he was being questioned. It appears that the officers worked in relays, some of them resting while others continued to question appellant. Appellant testified that he was unable to stand the torture and finally made a written statement to the district attorney to the effect that he had induced Matura to kill deceased. He testified, further, that this statement was false. The officers admitted in their testimony that appellant had been taken from jail in an automobile and had been advised that he ought to be killed, but that they did not want to *132kill him. Moreover, it was admitted by them that one of the officers suddenly placed a shirt around appellant’s head and bumped appellant with his knee. At this juncture, according to their testimony, appellant agreed to make a statement if they would take him back to jail. Further, the officers admitted that appellant was not permitted to sit down after returning to jail and was questioned continuously for many hours before he made the written statement. About a day after making his first statement appellant was taken before the grand jury by officers, and there made substantially the same statement that he had made to the officers. On another day he was again carried before the grand jury, to whom he made substantially the same statement. According to appellant’s testimony, his fear of the officers induced by the torture he had undergone impelled him to make these subsequent statements.
Appellant objected to the introduction in evidence of each of the statements to which reference has been made. The opinion is expressed that it was shown beyond controversy that the first statement was involuntary. Hence its reception in evidence constitutes reversible error. Art. 727, C. C. P., reads as follows:
“The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”
When proof that the confession was voluntary is essential to admit it in evidence, and the testimony is conflicting upon that issue,, it is the practice to submit it to the jury for solution. Williams v. State, 225 S. W., 177. However, when the *133evidence shows without conflict, as in the present case, that the confession was coerced by the officers in charge of the prisoner the court should exclude it. Williams v. State, supra.
As to the subsequent statements made to the grand jury, we are of opinion that the record before us fails to present evidence sufficient to rebut the presumption that in making the subsequent confessions the same influences which coerced appellant in the admission of guilt in the first place impelled his subsequent reaffirmance of guilt. In Williams v. State, supra, this court said: “We think the presumption should obtain, in the absence of evidence rebutting it, that the same influences which coerced him into the admission of guilt in the first place impelled his subsequent reaffirmance of guilt, or guilty knowledge.”
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.