(dissenting).
The testimony by wholly disinterested witnesses so overwhelmingly and conclusively demonstrates that appellant and no other foully murdered the deceased in cold blood, in the dead hours of the night, I cannot give my consent to a reversal of this judgment of conviction. The majority opinions herein I think show a clear .misconception of the testimony and of the law applicable thereto.
The sole question is, Was the testimony sufficient to show that appellant murdered the deceased, John Cain, with express malice? The jury, composed of 12 honest, fair, and impartial men, of different ages, walks, and avocations in life, upon their oaths say it was, and they so found. An impartial, eminent, and wholly disinterested district judge, who presided at the trial, on his official oath also so held. This judge and these jurors heard the witnesses when they testified, and saw their manner, and they could tell who testified the truth and who testified falsely. The judges of this court saw and heard none of this, and cannot tell who told the truth nor who swore falsely. Besides, our statutes expressly prescribe (article 734, O. C. P.):
“The jury are the exclusive judges of the facts in every criminal cause,” and (article 786) “the jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony.”
It has always heretofore, been held by this court, in obedience to these statutes, as held by Presiding Judge Davidson in Newton v. State, 5S Tex. Cr. R. 319, 125 S. W. 909:
“The jury are the exclusive judges of the facts proved as well as the credibility of the witnesses and weight to be given the testimony.”
This is such a well-known maxim of outlaw, it would be a useless consumption of time and space to collate the cases so holding. There is no case to the contrary.
Who was John Cain, the murdered man? The uncontroverted testimony shows he was a policeman in the city of Houston in the faithful discharge of his humble duties at the time he was shot down, foully murdered, in the silent watches of the night, at 3:30 a. m., on the night of August 4, 1911,, “His primary duties were to arrest violators, of the law, to detect and prevent crime, to enforce the law, to preserve the peace, and. to protect life and property” — I quote from an article in a recent issue of a leading journal. Who was the man who thus shot down and foully murdered John Cain? The testimony herein, without a shadow of doubt,, clearly and unequivocally demonstrates that the appellant, Houston Sharp, and no other, was the guilty murderer. Who was, and is,. Houston 'Sharp, the appellant? Let the record answer.. He swore:
“I am sentenced to 58 years in the penitentiary now on 16 burglary cases. * * * ” (S. E. p.. 28.) “I have been convicted in several counties on ■ pleas of guilty to 28 cases of burglary and theft and given a total of 58 years in the penitentiary for same. I was indicted in several other cases, for like offenses, and they were dismissed on account of my pleading guilty as stated above. I had been in the pen for about 9 years before-this and got out in 1910, and that is when I. moved to Houston. I was at the hospital farm in 1913 when I escaped from there in 1913. I was not there then for the 58 years — for the other part of the term I had not served before-after I had escaped.” (S. F. p. 29.)
As I understand his testimony, he escaped, from the penitentiary in 1910 while serving his sentence for the 9 years before he was-convicted in any of the burglary cases, and, was an escaped convict when he killed John - Cain, deceased, for he swore:
“I was at the hospital farm (a penitentiary branch) in 1913 when I escaped from there in 1913. I was not then there for the 58 years, (but) for the other part of the term [of 9 years], I had not served before, after I had- escaped.”
He further swore that when attempted to-be arrested by Officers Haddicks and Duck-worth, while an escaped convict, he resisted, arrest, and swore:
“I walks right out behind him with the gun in my hand, and so when Ml-. Haddicks turns around, Mr. Duckworth said, ‘what 'are you going to do?’ I said, ‘Nothing, but I ain’t going to jail,’ and Mr. Haddicks turns around and starts out with his gun, I had the gun in my hand. I said: ‘Stop, Mr. Haddicks, I don’t want you to shoot me or me you.’ I made him drop his gun, or at least he handed me the gun, and I taken it and pulled the magazine out and handed him his gun back, and I went on off.” (S. F. pp. 28, 29.)
He further swore that a little later, wlien-Mr. Jeter, another peace officer tried to arrest him, while he was still an escaped convict, he shot at him in resisting arrest. (®. F. p. 29.) So that out of his own mouth he-showed he was an escaped convict, serving a nine-year sentence when he killed John Cain, and when he testified that he was a convict in the penitentiary serving out sentences of convictions in 28 or 16 burglary and theft cases, and had committed others, and that it was his settled policy to resist arrest whenever and by whomsoever attempted. There can be no question but that he regarded every officer of the law his personal and mortal enemy, and acted on this on every occasion when he got the opportunity. A I confirmed and persistent burglar will doubt*212less always shoot an officer when caught, or attempted to be arrested
The original opinion herein seems to try to make it a point against the state that the district attorney, Judge Crooker, went from Houston to the Huntsville penitentiary to get a confession from appellant. The record shows this was not the case. He went there and took several disinterested witnesses with him for the purpose, and with the intention, to see if appellant could be indenti-fied by them as the murderer of John Cain. The confession was made by appellant after he had unquestionably been identified. Appellant by his own testimony showed that Judge Crooker, with several witnesses with him, arrived at Huntsville just as the convicts were to go to work; that he (appellant) and four other convicts together were taken before these witnesses to see if they could identify him. I quote the words from his own mouth:
“I was carried out there for the purpose of being identified, whether I was the man; two of these colored people brought up there; supposed to identify me; * * * so they came out to look at me; they never came out to look at the others. They knew I had a crippled hand because they had been informed I'had a crippled hand, and the first thing they did was to look for the crippled hand; but it was not this woman Belle but another woman, I don’t know why they did not have her there at that time; now after they identified me.” (S. E. pp. 21, 22.)
Then he says it was after this identification of him he made the confession.
Every witness who testified about the confession, as well as every other 'witness who testified against appellant, was a wholly disinterested witness. Not one of them was kin to deceased. Not one of them was shown to be in any way prejudiced against appellant or in favor of the state, and neither in any way is intimated to have had any motive whatever to testify other than the truth, the whole truth, and nothing but the truth, and X have no doubt, and I cannot see how any other who would read the record could have any doubt, but that each and every one of these witnesses swore the truth, and unquestionably that appellant did not.
Now as to the confession. The district attorney, Judge Crooker, swore positively that appellant made to Mm the confession in evidence after he had given him (appellant), fully and accurately the warning required by the statute, and that he then and there signed it. He signed it twice; the first time in the presence of some of the witnesess, and when another was called to witness it, he required that appellant should again sign it in his presence before he would witness it. Appellant did so, and he then signed his name as a witness.
Judge Crooker swore:
“The confession was dictated by Mm [appellant], and what he stated put down by me, written by me in his presence, at his dictation, and then read to him in the presence of the parties [witnesses] named.” (S. E. p. 13.)
He further swore:
“There was no suggestion of force, threats, or persuasion used to make him make that statement ; X know there was none used. It was freely and voluntarily made without a suggestion of coercion or anything else.” (S. E. p. 14.)
Again he swore:
“It was read to him twice; in fact in going over it with him it was read to him more than that. As I wrote it, I would read him what I had written, and then get him to go ahead, and then later at the end I read all of it, and again, in the presence, of these gentlemen, it was read again; the defendant dictated it. I wrote it substantially as near as I could just exactly what he said.” (S. E. p. 16.)
Appellant swore that said confession was not.read over to him by Judge Crooker or any one before he signed it; that he made it because Judge Crooker had agreed and promised him certain immunities; also that it had' been changed after he signed it and forged in several particulars. 1-Ie also swore that he did not shoot the deceased, John Cain.
After appellant had so sworn Judge Crook-er was again introduced and swore:
“I heard the defendant’s testimony about this confession. There has absolutely been no change in that statement whatever since he gave it. This is the identical statement that was read over to him and signed by him and witnessed by .him. There was mot a suggestion of any kind, or promise made to him.”. (S. F. p. 35.)
In addition to this, I will give the testimony of the five persons who signed as witnesses to this confession.
D. E. Teague swore:
“I am the warden of the state penitentiary, formerly was sheriff of ■ Washington county, was that 24 years; am still connected with the penitentiary. I only know Sharp since I was at the penitentiary; I was at the penitentiary at time Judge Crooker took a statement from the defendant, and I witnessed that statement; it was read over to him in my presence. • I heard it read to him. That is the statement which you hand me ; that is my signature on it. The statement was read over to him in my presence and I signed it.” (S. F. p. 31.)
J. R. Jordan swore:
“I am in charge of the criminal records at Huntsville. I know the defendant and Judge Crooker, and was present at the time Judge Crooker came there and took a statement from the defendant in regard to the killing of the policeman, John Cain. I witnessed that statement. That is my signature. I was present when the statement was read over to him. Mr. Teague had witnessed it, and he had already signed it, and I asked that he sign it in my presence, so' that I could witness the signature after it was read to him. The statement you hand me is the one Mr. Crooker read there.” (S. E. p. 33.)
Mr. Jordan also swore that he had been county clerk of Cook county for 8 years before his employment at the penitentiary.
E. A. Ellis swore:
“I live in Burleson county; am sheriff of that county. This is my first term; have been a peace officer 14 years. I know the defendant; was at the penitentiary when Judge Crooker was there, and took a statement from him. I witnessed the signature of Houston Sharp. I heard the statement read to the defendant and saw him sign it. He said it was true. This is the identical statement that you hand me.” (S. E. p. 34.)
*213T. H. Lacey swore:
“I am a deputy sheriff of Grimes county; have been a peace officer about 11 years; was sheriff of that county for some time. We knew the defendant there as Porter Wise; was present at Huntsville when Judge Crooker, took a statement from him. 1 heard the statement read in evidence here. I witnessed the statement. _ I heard the statement read to him, and saw him sign it. He said that it was true.” (S. F. p. 34.)
T. A. Binford swore:
“I am a detective in the police department of the city of Houston, and have been for about 8 years; know Houston Sharp. I was at Huntsville when he made that statement. I witnessed it. I heard it read to him. This is my signature. This is the same statement that was read over to him. He said that it was a true statement.” (S. F. p. 35.)
Appellant himself swore:
“I spent my early childhood in Jasper county and went to school there, and later at Prairie View, which is an institution of higher learning; stayed there 3 years. I taught school for a while.” (S. F. p. 29.)
The trial judge in the charge told the jury that the statute provides that:
“The confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion.”
And, further:
“If you find from the evidence introduced on the trial of this case that this defendant was compelled or persuaded to make this confession by the criminal district attorney, you will not consider the said confession in arriving at your verdict.”
From all this testimony can any human being for one moment doubt that appellant made and signed that confession literally, word for word, as it was plainly written? Surely not.
I now copy the whole confession, as follows:
“I, Houston Sharp, being first duly warned by John H. 'Grooker, the person to whom this statement is made: First, that I do not have to make any statement at all; and, second, that any statement I make may be used against me on the final trial of the case concerning which this statement is made — make the following voluntary statement: My name is Houston Sharp, and I am 40 years old. I went right to Houston and married and lived in the Heights and worked for the Consumers’ Oil-Tnill for some time. When I left the oilmill in the spring of 1911 I went in partners with Ed. Lee, running a blacksmith shop on Clark street until about June 1911, when I quit there and went to hauling wood in the Heights for myself. About August 1, 1911, I caught a freight train to Conroe and stayed up there a couple of days at a negro friend of mine named Collins’ house. A preacher named Johnson saw me there during that time. I carried a grip from Houston with me, and bought another one at a road camp where I stopped for a day. When I left the camp I went up in the town of Conroe and stayed around there until train time, and then caught the train for Houston. I had the two grips with me, and I had a pistol in my pocket. I saw the negro porter on the train whom I knew, but I do not remember his name. When the train was into Houston in the Fifth ward, I got my grips, and when the train stopped for the La Porte tracks, just before they got to Buffalo bayou, I got off and started back toward Nance street. I was going along the track when I saw a police officer, and I stopped in the shadow of a building until I thought he was gone, and then I started on again, and when I got a little farther I saw the officer coming toward the track along- Nance street, so that I would have just about met him. I was carrying both grips in my left hand as my right hand is crippled, and was at that time, so I switched the two grips quickly to my right hand and pulled my pistol with my left out of my left hip pocket and began -running as fast as I 'could north right in the center of the tracks. The officer called to me twice to stop, and I saw that he had his gun in his hand, so as I ran I turned and fired at him once. My gun was a double-action gun, but I cocked it before I fired. I saw him fall to the ground just after I fired, and I knew I had hit him, as I heard him say something about being shot, but I do not remember his exact words. I did not stop, but kept running as hard as I could. I saw a negro man and a negro woman coming from the same direction the officer had, that is, along Nance street, but I would not remember them. I remember there was an electric light there, and suppose they could have seen me, as I was up on the center of the railroad and they were down on the ground. I dodged around there in that neighborhood and crossed the bayou over into Second ward, and then went to a woman’s house named Black Belle. I had seen her before, and knew where her place was. She is the same negro woman who came up to the Caldwell jail and looked at me. I stayed in a room there that night, and paid for it. While I was there I laid my pistol on a table, and it had not been changed since I shot the officer. I took the two grips the next morning and went to my home in the Heights. No one saw me at home with the grips or pistol except my wife, and she has died since then, but I did not tell her anything about this. I continued to live in Houston Heights till about March, 1912, when I left and, went to Louisiana. I first learned that I had killed the officer on the following evening from the newspaper. I never said anything about this matter to any one until about November, 1915, when I was in the Grimes county jail, and I met two negroes there, Ike Phelps and Cleveland Craft, one of whom I had known before, and I got to talking to them, and told them about killing this officer.
“[Signed] Houston Sharp.
“Houston Sharp.
“[Signed] D. E. Teague.
“J. It. Jordan.
“E. A. Ellis.
“T. H. Lacy.
“T. A. Binford.”
(S. F. pp. 16, 17, 18.)
But ouside of, and in addition to said confession, the state, without any sort of doubt, proved that appellant, and no other, murdered John Cain, deceased, at the time and place he was killed, as I will now show.
Ike Gailey, the porter on the train from Conroe, in Montgomery county, to Houston and beyond,' testified that appellant got on that train at Conroe with a suit case and hand grip, and rode on that train from Con-roe to the railroad crossing in Houston; that when the International & Great Northern train stopped and whistled for that crossing, he had to get out, go to that crossing and flag the train so as to let it pass over; that while he was out discharging this duty appellant got off of that International & Great Northern train. (S. F. pp. 7, 8.)
IV. P. McKee, who on the night of August *2143, 1911, .was an employé or watchman at the Industrial Rice Mills on the track right near the crossing of the International & Great Northern testified that the International & Great Northern train in stopping for that crossing stopped right by the side of the mill of which he was the watchman; that on this particular night when the train stopped he looked out- at it, could see it plainly, and he saw a colored man, who could have been no other than the appellant, get off of that train with a suit ease and hand grip. He described him in such a way as to unquestionably identify that person as the appellant. 1-Ie swore that after he got off this train he went back north, up the International & Great Northern track, and after passing where he, the witness, was, in a very short time he heard a shot fired up there, and the shot was fired where Officer John Cain was shot, about four blocks distant.
James Rabie, employed at the time by the International Press, right at the crossing of said railroad tracks, testified that he knew deceased, John Cain; that shortly before the arrival of said International & Great Northern train he saw John Cain ring into headquarters and make his report. He then talked with him there some minutes; that he then heard the International & Great Northern train arrive in Houston, and just after it had passed on over said crossing, he swore:
“After hearing the passenger train pass, I heard talking on the railroad track out there. I recognized Mr. Cain’s voice. He says, T am an officer, stop!” The reply was, ‘Stop hell.’ And then gun fire. The man that fired the gun ran up the track north, and Mr. Cain hol-loed ‘Help!’ I went to him. in less than two minutes. When I got to him, he was laying right fiat on his back. He wanted me to notify the.station and have Wright’s ambulance called immediately. I asked him: ‘John, are you shot? What is th" matter?’ He says: ‘I am shot.’ I says: ‘Where at.’ He opened his coat. There was a little rod spot right there. Then I went and notified the station and called the ambulance, and then I ran back, and he was still complaining, halloaing, and talking. Then I asked him who shot him. He said: ‘A negro, yellow negro.’ ” (S. F. pp. 3, 4.)
Norflette Hill, a city detective in Houston, and was a mounted policeman at the time, swore that as soon as Mr. Rabie phoned that John Cain was shot he and his partner went right over there on horseback and found Mr. Cain where he had been shot. He said that when he got to him, he saw he was shot through and through in the breast near the center of his body; that at this time John Cain made a statement to him. On direct examination he swore:
“He said a negro shot him. He described the negro. He said it was a yellow negro with a mustache, carrying a telescope or suit case and a little hand bag.” (S. F. p. 2.)
He further swore that the said shot killed John Cain, and that he died the following evening about 2 or 3 o’clock. On cross-examination he swore:
“I said Mr. Cain made a statement to me. I asked him who shot him,-and he told me that it was a yellow negro with a long mustache, carrying a hand telescope or suit case or good big satchel and a little hand bag. And he told me-that he followed him down the track and hol-loaed to him a time or two to stop; that he was an officer. He told me that he had hol-loaed to him several times to stop. I don’t know whether he said two, three, or four times;, and when he got up pretty close in about 8 feet of this man, the man was carrying the suit, case and the little grip * * * in his right hand and when he got up within about 8 feet of him, the negro said, ‘Stop hell,’ and shot him. Just wheeled and shot him, and he fell right there. He was carrying the suit case and a satchel in his right hand. That he was a yellow negro with a long mustache and had the-appearance of a preacher when he first looked, at him.” (S. F. p. 3.)
On redirect examination he testified:
“I saw Mr. Cain’s pistol there. He had on-two. One of them was stuck in the waist of' his pants, and the other was in his hip pocket. They were on his person. Neither one of his. pistols were discharged. No empty chambers in any of them.” (S. F. p. 3.)
Belle Jenkins (Black Belle), a negro woman who lived in Houston, swore that on the night or early morning in which John Cain was shot appellant, whom she knew, came to her house and wanted a room; that when-he came in he handed her his gun pistol;, that when he gave it to her—
“it was right hot, one bullet was gone out of it. I smelled powder; it was hot; felt warm 1 mean. * * * I could smell the burned powder.” (S-. F. p. 8.)
She further swore that appellant stayed' at her house the remainder of the night; that next morning two officers came down to her house hunting for a man -by the name of “Holliding,” whom they were after to arrest; that appellant was there at the time; that these officers found Holliding and arrested him. While they were doing this-appellant hurriedly left her house, jumped over the fence on the side, and escaped. She also swore that she went to the Caldwell county jail to identify appellant as the person who was at her house on said occasion,, and did so.
George Peyton, gne of the policemen who> went to said negro woman Belle Jenkins’ house on the morning of August 4, 1911, to-arrest Holliding swore:
“I saw the defendant there at that time; he-ran out and jumped over the back fence.” (S. F. p. 21.)
Roy Smith and his wife Jennie each swore-that about the 7th or 8th of July, 1913, appellant was at their home and had dinner with them that day, stayed there several hours, and each swore that he then told them “that he was in trouble at Houston; that he had killed a policeman there in 1911.” (S. F. pp. 11, 12.)
The state proved by another witness that. John Cain, deceased, was the only policeman, that was killed in Houston in 1911.
It is true appellant testified that he was-at home with his wife on the night of August 3, 1911, when John Cain was killed. He fixed this particular date by the fact that: *215lie claimed that Us wife that night gave birth to a girl baby. To bach up Ms testimony as to this alibi he introduced a negro woman midwife, Phyllis Ourtis, who testified that she recalled waiting on appellant’s wife “on or about August 11th,” and that she waited on her when she gave birth to said child. On cross-examination she swore:
“I cannot remember what day of the month it was; the only way I would know is by the way I made my reports.” (S. F. p. 19.)
On cross-examination of appellant himself of his claimed alibi he was confronted by the said written report of the negro woman midwife, and swore:
“This Harris county birth register No. 1980, that you now show me, shows the baby was born July 24, 1911, and that the certificate was filed in the county clerk’s office July 26th.” (S. F. p. 80.)
The court in his charge plainly told the jury, correctly, what was an alibi, and charged the jury:
“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offence was committed at the time of the commission thereof, you will find him ‘not guilty.’ ”
Of course, no honest jury in the face of the testimony shown by this' record could for one moment have thought of acquitting him on Us claimed false alibi. It was without any doubt proven to be false. He, and he alone, was the murderer of John Cain.
No question whatever was raised in the court below or in this court by appellant in any way that the confession of appellant raised any issue in Us behalf which could in any way exonerate Mm for the foul murder of John Chin. That question is for the first and only time mentioned by the opinion reversing this judgment. Even if it could be claimed at that late date that such an issue was raised, without the slightest doubt the state disproved it overwhelmingly by disinterested testimony. There can be no doubt from the testimony that the deceased, John Cain, saw appellant pull Us pistol before Cain ever told him he was an officer and to stop, repeating this. The statute (P. C. art. 479) expressly requires any peace officer to arrest any person without warrant whom he sees carrying a pistol, and makes it an offense for any officer who shall fail or refuse to arrest such person, either on his own knowledge or information from some credible person, to be punished by a fine not exceeding $500. Appellant in carrying his I>istol was not a traveler, as has been held many times by this court down to this date. He was merely going from Conroe, the county seat of Montgomery county, to Houston in Harris county, an adjoining county. Even if he could be held to have been a traveler, it was John Cain's duty to arrest him when he saw him with a pistol. There was no duty, either express or implied, on John Cain, before arresting him, to judicially or otherwise investigate to determine whether he was a traveler. That -question would be investigated when he was taken before the proper officer for that purpose. No doubt appellant was returning from one of his many burglarious raids, with Us suit case filled with stolen goods, and he did not intend to even be stopped on that account, much less arrested.
Comment on, or a résumé, of, this testimony is wholly unnecessary. Having carefully read it time and again, I am convinced beyond a reasonable doubt, or any other doubt, of appellant’s guilt of the malicious murder of John Cain. Twelve fair and impartial jurors, in obedience to the oath they had taken, and who heard all this testimony and saw the witnesses testify, found that he was thus guilty; and the trial judge also so held. They, and not the judges of this court, by our Constitution and statute law are made the exclusive judges of these matters. Their verdict and judgment should stand. I cannot get my consent to turn this murderer loose from his most righteous conviction, after a perfectly fair and impartial trial.
I respectfully but earnestly protest and dissent.