Appellant has filed a very pointed, concise and forceful motion for rehearing, in which he sets out that his Bill of Exception *Page 292 No. 7 "shows that this negro was questioned by various officers in relays of two at a time, from about 5 o'clock on Saturday afternoon until about 5 o'clock the following Sunday afternoon, and that there were only slight intermissions for the appellant to have a bite to eat, or relax." The writer entertains the view that such conduct, if indulged, could be sufficient to break the resistance of the accused and wring from him a confession in writing. Whether true or untrue, such confession, if by any means forced, would become inadmissible. Abston v. State, 141 S.W.2d 337; Ward v. State, 158 S.W.2d 516, Id., 316 U.S. 547, 86 L. Ed. 1663, 62 S.C. R. 1139.
There is a further assertion, in the motion, that the officers obtained one confession which did not suit them; and that this led to a second one, made later in the day, which was introduced in evidence. If the record sustains the contention as to the involuntary nature of the first confession, the presumption may rest that the second one was obtained as a result of the same force which produced the first. Cavazos v. State, 172 S.W.2d 348.
These questions we consider settled by the decisions of this court and by the Supreme Court of the United States. As a consequence of the above quoted excerpt from the motion for rehearing, together with other charges contained therein, we have examined the record with the greatest possible care and fail to find evidence sufficient to sustain the contention. Furthermore, the evidence which was given on the subject was sharply contested. This boy, shown to have been many times convicted of felonies, gave a statement in conflict with that of all of the officers whom he involved. The trial court heard his testimony and passed upon the question of fact thus raised. It is inconceivable that anyone should expect the trial court to accept the testimony of this boy, accused and shown by other evidence beyond any reasonable doubt to be guilty of one of the most heinous crimes to be found in the records of the court, against the direct and positive testimony of a large number of reputable citizens of the county. Not only is it without the province of this court to set aside that finding of fact by the trial court, but it would appear to be most unusual for us to do so, if it were within our power. In the view of the writer, the original opinion correctly states the rule as to questioning a party. There is nothing in the evidence of the accused to even raise the issue. He only says that they talked to him at intervals, not continuously in relays, from Saturday afternoon until Sunday afternoon. He *Page 293 was brought out of the jail several times, in the investigation, prior to about one or two o'clock in the morning. The officers waited until this late hour in order to bring a lady who was reported to have been attacked by the appellant, near the scene of his crime, within a few minutes of the very time the murder was committed. She came, viewed him under different makeups and light conditions, and positively identified him. Her testimony is pertinent and important in the case. The officers had arrested a large number of negroes, made investigation, and turned them loose.
The appellant, himself, made no charge in his statement that would show any force or undue persuasion. We quote from his statement, page 61 of the Transcript:
"A. Mr. Rhodes mentioned about to tell them all about it. I tell him I didn't know. He said he know I did, BUT HE DIDN'T FORCE ME."
Again, page 66 (on cross-examination):
"Q. And you know nobody didn't over-persuade you or anything. A. They didn't beat me up or nothing, no."
And again, page 71:
"Q. I want to get you straight. You say that the officer over here to my right, Mr. Shelton, cursed you? A. Yes, sir.
"Q. What did he call you? A. Oh, not nothing so bad."
Then he explained that they cursed in his presence and cursed at him, but we see no indication in his own testimony of any threat, direct or indirect. He makes some indefinite claim that something was said about a race riot, the burning of a large number of negro homes, that of his mother, etc., but we find no force in this. The record shows that he had fairly regular hours of rest, that he lost no meals, and that they only questioned him. The right to do so is discussed effectively in the original opinion.
It is argued in the motion that he was a very ignorant negro, easily influenced. The language used by him reflects intelligence above the average of one of his race in the community and certainly no lack of understanding of the language used. He had had ample experience with officers, having been many times in jail and serving long in the penitentiary. The surroundings could not be presumed to have any unusual influence in *Page 294 creating fear. In fact, we find nothing in the record to substantiate the claim that he was unduly influenced into making the statement. He chose the District Attorney as the one to whom he should make the statement and, without contradiction in the record, he entered into negotiations with the District Attorney in an effort to get an agreement for a penalty of 25 years. It occurs to the writer that he displayed unusual intelligence, composure, and forethought in the matter.
In view of all of the evidence of the case, there can be no doubt of his guilt and that his victim was not only murdered, but that she was ravished by him — a fact which he carefully refrained from admitting.
The appellant's motion for rehearing is overruled.