dissenting:
Upon re-examination of the facts, I have come to the conclusion that the confession of the appellant was not admissible and that its introduction in evidence was violative of the Con*403stitution and statute law of this state and also of the due process clause of the Fourteenth Amendment to the Federal Constitution as applied by the decisions of the Supreme Court of the United States.
The deceased resided with his wife on a farm near Gilmer, Texas. On the morning of February 26, 1954, he was engaged in burning some brush in a field a short distance from the residence. He returned about noon for lunch. At that time his wife turned over to him twenty dollars in currency which had been left with her by Kermit Spann for him. Deceased went back to the field that afternoon. When he did not return from work at the usual time, his wife became alarmed and started in search for him. Not being able to find her husband in the field, she went to the residence and then to the home of a neighbor, to whom she communicated the fact that she feared something had happened to him. She requested that a son of the deceased, who resided in Gilmer, be notified of her apprehension.
As a result, a nephew of the deceased and the son and others appeared at the home. A search was instituted, and the burned, charred body of the deceased was found in a wooded area there on the farm, the mid-section of the body being especially badly burned.
No attempt was made at the trial to explain how the fire was communicated to the body.
When found, the body was from 150 to 200 yards from any burning brush pile.
An autopsy was attempted, but was ineffective further than to show that deceased had been shot in the head with a small caliber firearm.
Two days after the body was discovered, appellant, a twenty-nine-year-old illiterate, weak-minded Negro man who lived with his father in Gilmer, was arrested by being summoned by the sheriff to come to the office of the county attorney. Appellant answered the summons and was questioned at that time for some thirty or forty minutes by the county attorney. The context of any statements he made was not revealed. It is sufficient to say that appellant was released upon his agreement to accompany the officers to Austin, where he would subject himself to a “lie detector” test. Two days thereafter, on March 2, 1954, the sheriff and the county attorney took him to Austin, *404a distance of 280 miles, where he was given the lie detector test by an operator at the Texas Department of Public Safety. The test consumed something like two hours, after which the three parties returned to Gilmer and appellant was released from custody and permitted to return to his home.
The state strenuously objected to proof of the result of the lie detector test for any purpose or reason.
Three days thereafter, on March 5, 1954, appellant was again arrested and placed in jail.
The following day the county attorney took a statement from appellant, the contents of which were not revealed.
On March 11, 1954, appellant was again taken to Austin by the sheriff to undergo another lie detector test. The county attorney and the editor of a Gilmer newspaper accompanied them. Appellant’s father was also taken along. At Austin, appellant agreed to take the test which, on this occasion, consumed less than an hour.
Again, the state prevented the result of this test from being known.
After completion of the test, the sheriff was left alone with the appellant for a time. According to the sheriff’s testimony, he talked with appellant a while and then showed and displayed to him a picture of the burned and charred body of the deceased, which the sheriff admitted was a “mighty gruesome sight.” Almost immediately after the picture had been exhibited to appellant he agreed to make a confession. This he did, to the county attorney, while they were yet at the Texas Department of Public Safety.
Immediately after the confession had been given, all parties returned to Gilmer.
It is significant to note the testimony of the sheriff as to his purpose in exhibiting the picture to the appellant, as follows:
(“Q. * * * Did you have some reason for showing him the picture, Mr. Watson?) A. Yes, sir.
“Q. What was it? A. I was trying to clear up what I thought was a murder case.
*405“Q. Was that the way to clear up a murder case? A. I was trying every angle.
“Q. What you were trying to do was get a confession? A. I was trying ever-angle.
“Q. Answer that question, weren’t you trying to get a confession out of him at that time? A. Certainly.”
The confession was received in evidence over the strenuous objection of appellant’s counsel.
It would serve no useful purpose to here set forth the confession. For instant purposes it is deemed sufficient to say that appellant therein admitted killing the deceased by shooting him with a .22 caliber rifle while deceased was in a wooded area of his farm, that the motive for the killing was robbery, and that, after the shooting, he took a purse containing thirty dollars in currency from the body of deceased.
Nowhere in the confession did the appellant say anything concerning setting the body on fire or that there was a fire in the vicinity of the spot where the deceased fell. He said that he fled from the scene immediately after the shooting.
If there be any particular facts which stand out above others, they are as follows:
Appellant did not implicate himself in the killing until after the sheriff had exhibited to him the gruesome picture of the burned and charred body of the deceased. Up until that time, the necessary inference to be indulged is that in none of the questioning and statements prior thereto had the appellant implicated himself and that the lie detector tests were negative.
The other significant fact is that some one burned the body of the deceased. The confession of the appellant which the state offered in evidence, and thereby vouched for the truthfulness thereof, exculpated appellant from any connection with the burning. According to the confession, he could not have burned the body of the deceased.
If there were removed from this record the confession and the evidence obtained as a result thereof, serious doubt would exist as to whether theré remained sufficient evidence to warrant appellant’s conviction.
*406The importance of the confession to the state’s case cannot be doubted.
There are those who insist that the polygraph or socalled lie detector test has been established as a reliable medium for ascertaining when a subject is testifying truthfully or falsely. The test is now being used extensively by law enforcing agencies.
The fact that when appellant sought to introduce the result of the two tests to which he was subjected the state strenuously objected thereto strongly suggests that the result of the tests was not beneficial to the state’s case. That the state may have had the right to object, as it did, does not change the implication that must of necessity exist as a result of that objection, especially when the appellant was seeking to have that result in evidence before the jury or the court.
It is by reason of all these facts that the appellant insists that the confession was obtained as a result of psychological or mental coercion.
The Supreme Court of the United States recognizes that the use of a confession obtained as a result of mental or psychological coercion is forbidden by the Fourteenth Amendment to the Federal Constitution. Leyra v. Denno, 347 U.S. 556, 98 L. Ed. 984, 74 S. Ct. 716.
There is no question but that this court is bound by the decisions and conclusions of the United States Supreme Court touching the receipt in evidence of confessions in the trial of state criminal cases as being violative of due process of law. In the case of Prince v. State, 155 Tex. Cr. R. 108, 231 S.W. 2d 419, we had occasion to write upon the subject and to list the cases by that court wherein confessions of the accused in state court trials had been held to be inadmissible as being in violation of due process.
I am much impressed with the similarity between the instant case and that of Ward v. Texas, 316 U.S. 547, 62 S. Ct. 1139, 86 L. Ed. 1663, cited in the Prince case, especially wherein it is shown that what was done with and to the accused was all for the admitted purpose of extracting a confession from him, which was successfully accomplished.
I am convinced that under the decisions of the Supreme Court of the United States the instant confession was not ad*407missible in evidence. So believing, I have no right to refuse to follow those decisions. Whether I believe the holding of the Supreme Court of the United States to be correct or not is of no consequence. The sole question for my determination is whether the decisions of that court furnish a precedent showing the confession in this case was not admissible. It is my opinion that they do furnish such precedent. It is my duty to follow that precedent.
Not only do the decisions of the Supreme Court of the United States show that the confession was inadmissible but, I am also of the opinion, such is the conclusion that should be reached under the Constitution and laws of this state.
The United States Supreme Court is not alone in its conclusion that mental coercion might vititate and render a confession inadmissible. The legislature of this state entertains the same view and has, in effect, so stated by Art. 1157, P.C., and Art. 727a, C.C.P.
By Art. 1157, P.C., it is made unlawful for a sheriff to torture, torment, or punish a prisoner in his custody by inflicting mental pain upon him for the purpose of making or attempting to make such person confess to any knowledge of a violation of the law.
Art. 727a, C.C.P., says that any evidence obtained in violation of the laws of this state shall not be admitted in evidence against the accused on the trial of any criminal case.
In Colley v. State, 143 Tex. Cr. R. 390, 158 S.W. 2d 1014, this court gave effect to the statutes mentioned and there held that where Article 1157, P.C., had been violated in obtaining a confession such confession was not admissible in evidence— and this, notwithstanding the probability that facts may have been ascertained by and as a result of the confession which would conduce to establish the guilt of the confessor. See, also, Abston v. State, 132 Tex. Cr. R. 130, 102 S.W. 2d 428.
Here, the evidence does not suggest the application of physical violence to or pain or torture upon the appellant. Appellánt does insist, however, that the facts abundantly establish that he was subjected to mental torture and pain, as a result of which he made the confession, but for which he would not have done so.
*408There appears no fixed definition as to the meaning of the term “mental pain,” as used in Art. 1157, P.C.; obviously there could be none because the facts in each particular case would necessarily determine the question.
In arriving at a determination of what constitutes mental pain, I am particularly impressed with what was said in Stein v. New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522, wherein we find this language:
“The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”
Obviously, then, in order to determine whether the instant confession was obtained as a result of mental pain, the mental condition of appellant, the setting under which the confession was made, and the facts leading up to that situation must be looked to. With that observation in mind, we notice again these pertinent facts:
Soon after the body of deceased was found, appellant was called upon to explain his whereabouts to the county attorney. While the record does not say that at that time he protested his innocence, the necessary inference to be indulged is that he did, because the sheriff requested his consent to take a lie detector test. Unless appellant had protested his innocence, there would hardly have been occasion for the sheriff to suggest that he take such test.
In custody of the sheriff, the appellant was carried a distance of 280 miles to Austin, where the lie detector test was given him. This test must have been negative and in keeping with appellant’s claim of innocence, because, upon returning home, he was unconditionally released from custody.
Following that release, he was again arrested, and questioned by the county attorney, and asked to take another lie detector test. Upon assent, he was again conveyed to Austin. This time, the editor of the local newspaper was along, in addition to the county attorney and appellant’s father.
More questioning and another lie detector test followed. The *409record is absolutely silent as to whether a different result from the other questioning and test was obtained.
In any event, the sheriff, alone with the appellant, took over the questioning, during which he confronted appellant with the gruesome picture of the burned, charred body of the deceased whom he was charged with having killed. It was only under such circumstances that appellant made the confession.
I cannot bring myself to the conclusion that this twenty-nine-year-old illiterate, weakminded Negro man, did not suffer, under the circumstances mentioned, at the hands of the sheriff that mental pain which Art. 1157, P.C., says precludes a valid confession.
I am fortified in that conclusion by the holding in the cases of Perrygo v. United States, 32 Fed. (2) 181, and Davis v. United States, 32 Fed. (2) 860, upon the proposition that the exhibition of the picture of the body of the deceased, under the circumstances, constituted mental pain and torture.
Throughout the consideration of this case, there constantly reverts to my mind the question: Who set fire to and burned the body of the deceased? Appellant’s confession, which the state relies upon as being true, absolutely precludes the idea that appellant did so or was connected therewith. Not only is that true, but the body of the deceased was burning and still on fire when first discovered, several hours after the time appellant fixed in the confesssion that he shot the deceased, immediately after which he fled from the scene of the shooting.
Of necessity, the presumption must attain that the person responsible for the deceased’s death set fire to and burned the the body.
According to the confession, which, by its introduction in evidence, the state says is true, appellant did not and could not have burned the body. So, in one breath, the state says that the confession is true insofar as the killing is admitted but that it is not true wherein appellant is exonerated of the burning of the body.
But the above inconsistency is no more imponderable than is that wherein the state is cast in the position of saying that a lie detector test is sufficiently reliable to warrant its use in criminal matters so long as the result is favorable to the state’s *410case but that it ceases to have that reliable aspect when it is favorable to the accused.
On motion for rehearing, the majority opinion suggests that the record in this case might be insufficient to authorize this court to review the validity of the confession. If my brethren want to dispose of this question because of some technical failure to follow some procedural matter, such is their province. But I want no part of it.
The facts speak for themselves, and are before us. As the facts show that this confession was obtained in violation of the Constitution and laws of this state and of the United States and appellant has been denied due process of law, this court should not permit the conviction to stand, regardless of some procedural rule not being followed in bringing the matter before this court.
Being convinced that the confession of appellant was inadmissible both under the decisions of the Supreme Court of the United States and under the Constitution and laws of this state, I respectfully dissent to the affirmance of this conviction.