Under an indictment charging the malicious murder of Levi Brown, by strangling him with the hands, appellant was convicted of murder without malice and his punishment assessed at three years' confinement in the State penitentiary.
Early Sunday morning, June 25th, 1939, the body of deceased was found in the northeast section of the City of Mt. Pleasant, in the vicinity of the railroad tracks, and near a blacksmith shop and a shirt factory. It was lying in grass about knee high. There were no physical signs or evidences of a struggle or combat. Deceased was a man 72 years of age and had lived in and around Mt. Pleasant for more than 12 years. At the time of his death, he actually resided at Omaha, in Morris County. He was last seen alive on Saturday night, June 24th, 1939, standing on a street corner in Mt. Pleasant. He was seen leaving this place in the company of appellant and a woman, both negroes, and going in the general direction of where his body was found. A short time later, the appellant and the woman were seen to return, the woman going in a southerly direction and the appellant returning in the direction whence they came and in which deceased had gone.
When found, the body was fully dressed. The front of the pants was open. The front of the tail of the shirt was exposed, with blood spots or bloodstains thereon. Glasses worn by deceased were on his head. His watch was in his pocket. There was no evidence indicating robbery. The skin of the neck and throat was bruised, lacerated and discolored. The face was swollen and the eyes distended. The head of the penis showed *Page 446 slight lacerations to the extent that it had bled. The doctor, who made an examination of the body there on the ground, as well as after its removal, said that, in his opinion, death was caused by strangulation.
There was evidence that, for some time, deceased had been afflicted with a heart ailment; and, under doctors orders, he had taken digitalis regularly. On the day of his death, he took a dose of digitalis before leaving home.
To show guilt, the State, in addition to the foregoing facts, relied upon the written confession of appellant, made to the County Attorney of Henderson County, at Athens, on the 29th day of June, 1939. The details set forth in said confession are of such a revolting nature as that no useful purpose would be served to here set them out. Suffice it to say that, in the confession, appellant admitted that he choked deceased to death with his hands, after he had engaged in an act against nature upon deceased, performed under a prior agreement that deceased pay him a dollar therefor, and that, after completion of the act, the deceased refused to pay him, and cursed and hit him. We quote from the confession, upon this point, as follows:
"He then hit me and I ran into him and knocked him over on his back. I then got down over him and choked him. I held him around his neck with my hands for about five minutes. I got up and ran off, leaving Mr. Brown on the ground. He was not moving and I could not tell whether or not he was alive."
Appellant testified as a witness in his own behalf and denied any connection with the death of deceased. He asserted the defense of alibi, and introducted testimony corroborative of this defensive theory. He claimed that he signed the confession only as a result of whippings, beating and physical violence applied by the officers who had him in custody.
Appellant objected to the introduction of the confession because it was not free and voluntary but was obtained as a result of the violence used by the officers. The trial court permitted the facts relative thereto to be fully developed, at the conclusion of which he overruled the objection and submitted the issue of voluntariness to the jury by appropriate instructions to the effect that, if they entertained a reasonable doubt as to whether the confession was freely and voluntarily made, to disregard the same. *Page 447
It is appellant's contention that the facts as a whole show that the confession was not freely and voluntarily made, and that it was, therefore, inadmissible as a matter of law.
To determine this question, we first call attention to the following facts, which appear in the record undisputed and uncontroverted, viz.:
On the same day the body was found, appellant and several other negroes were arrested and taken into custody and questioned, during which questioning one of the officers slapped appellant, his reason therefor being that appellant had called him a liar. Appellant was later, and on the same day, released from custody, with no charge preferred against him. Two days thereafter, or on Tuesday night, appellant was taken into custody by the Sheriff of Morris County and the local constable. They began a series of moving appellant from one town or jail to another. He was first carried to Daingerfield, in Morris County; then to Pittsburg, in Camp County; then to Gilmer; in Upshur County; then back to Pittsburg; and, from Pittsburg to Tyler, in Smith County. At these places, he was placed in jail. At Tyler, he was turned over to two highway patrolmen, who in turn carried him to Athens, in Henderson County, where he was turned over to Sheriff Sweeten of that county. Athens is 110 miles from Mt. Pleasant. The time consumed in these movements was from Tuesday night until the following Friday afternoon. The confession was made in the jail at Athens and within about thirty minutes after appellant was placed therein.
Constable Redfern, one of the arresting officers, and who had custody of appellant until he was placed in the Tyler jail, testified, among other things, as follows:
"In moving the defendant as I have testified, the sole and only consideration in doing so was to try to get a statement from the negro in talking to him alone or in connection with others who possibly knew something about the crime, and I was protecting him against rumors and threats of mob violence."
Highway Patrol Sergeant Gordon, who carried appellant from Tyler to Athens, said: "We didn't do one thing in the world to him to make him make that statement. ___________________ We just talked to him to get that statement. Yes sir, we just sweet talked him out of it." *Page 448
Sheriff Sweeten of Henderson County, in whose custody the appellant was when the confession was made, said: "We talked that confession out of him. It took us twenty or thirty minutes to get that confession."
The County Attorney of Titus County testified that he saw appellant and talked to him at two different times, in two different jails, i.e., Gilmer and Pittsburg, before he was carried to Tyler, and that, at each of such times, the appellant told him that he would make any statement that he, the county attorney, wanted him to make, about the killing, but that he was not guilty of committing any crime in connection with the deceased. The county attorney refused to accept a statement under such circumstances, telling appellant that any statement he took from him would have to come freely and voluntarily. After the confession had been made at Athens, the county attorney talked with appellant in the jail at Tyler, at which time appellant admitted that he had had something to do with the death of deceased.
As stated, the foregoing facts appear undisputed.
We now call attention to the facts which were disputed and controverted: whether there were threats of mob violence towards the appellant such as justified the officers in the exercise of their discretion in moving appellant out of Titus County and in carrying him to the different jails in order to keep his exact whereabouts secret.
Without setting out the testimony in detail, appellant testified to severe beatings and whippings with a leather strap, especially at Athens, while in the custody of the officers; also, that he was burned by lighted cigarettes being applied to his body.
Each and every officer who had custody of the appellant from the time of his arrest until the confession was made testified that he was not whipped, beaten, burned, or in any manner mistreated, by them, or by anyone else, in their presence.
The County Attorney of Henderson County, to whom the confession was made, and who reduced same to writing, testified that it was freely and voluntarily made, after the statutory warning had been given; that appellant showed no signs of having been illtreated in any manner; and that, after the confession was written, appellant read it over before signing it. *Page 449
The witness Pennell, a laundryman at Athens, who happened to be making a delivery of laundry at the time the confession was made, said that he was called in to witness the same; that, after doing so, he asked appellant to remove his clothing in order that he might verify the statement in the confession that it was free and voluntary; that the appellant did remove his clothing; and that he examined his body "from the bottom of his feet to the top of his head. I didn't see anything wrong with him. Yes sir, I looked at his shoulders. No sir, I didn't see any whelps or knots on his head, I saw no marks on him."
The witness Ard, who was Sheriff of Titus County at the time of the murder, testified that he saw appellant in jail at Gilmer after the confession had been made and "I saw some marks on his neck and shoulder and arm that appeared to be cigarette stub burns. Yes sir, they were fresh. There were several of them on his body."
There was testimony which raised the issue that the officers moved the appellant from place to place and jail to jail to prevent his counsel from knowing his whereabouts and to prevent his release from custody by writ of habeas corpus.
The right of the State to use in evidence, as such, a confession of the accused, has, at all times, been limited and controlled by statute (Arts. 726 and 727, C. C. P.).
This court, as reflected in its decisions touching the subject of confessions, has, throughout the years, endeavored to give effect to the mandate of the statutes, in the light of the facts of each case; and, as a consequence thereof, there appear three cardinal rules governing the admission in evidence of a confession: (1) A confession, to be admissible, must have been made in accordance with the statutes mentioned; (2) Where facts touching such compliance are controverted or are at issue, such issue of facts should be submitted to the jury for determination, along with the trial of the case, under appropriate instructions that the confession be disregarded unless made in accordance with the statutes; (3) Where the facts show that the confession was not freely and voluntarily made, then same is inadmissible as a matter of law.
The decisions of this court attesting these rules are legion, We call attention to a few of the more recent cases: Blackshear v. State, 95 S.W.2d 960, 130 Tex.Crim. R.; Abston v. *Page 450 State, 102 S.W.2d 428, 132 Tex.Crim. R.; and Sigler v. State, 139 S.W.2d 277, 139 Tex.Crim. R..
No person ought to be convicted of crime in this State upon a confession forced or extorted in any manner from him. This court has endeavored, at all times, to prevent such an occurrence. Much has been said, and more might be said, supporting the doctrine; but, we forego the opportunity to again do so, contenting ourselves here with a reference to what we said in the foregoing cases.
The question for our determination here presented, then, is: Do the facts of this case show the confession to have been freely and voluntarily made, under the applicable statutes of this State?
Outstanding in these facts is the mode, manner and method by which appellant was conveyed from one place and jail to another, the admitted purpose on the part of the officers, at least partially, being "to get a statement from the negro in talking to him alone or in connection with others who possibly knew something about the crime."
Also, as admitted by another of the officers: "We just talked to him to get that statement. Yes sir, we just sweet talked him out of it."
The confession was finally obtained, as one officer said: "We talked that confession out of him. It took us twenty or thirty minutes to get that confession."
We give effect to the good faith and intent of the officers in moving appellant out of Titus County in order to secure his safety. Yet we cannot subscribe to the idea that it was necessary to carry him 110 miles, to Athens, Texas, for that purpose. That such was not the reason appellant was carried to Athens is demonstrated by the fact that he was kept there only twenty or thirty minutes, and was carried back to Tyler, immediately after he had made the confession. The conclusion is inescapable that he was carried to Athens as a part of the plan to "get a statement from the negro," and which had failed up to that time.
Credence is also given to the fact that, before being carried to Athens, the appellant had repeatedly asserted his innocence *Page 451 but had, nevertheless, offered to make a statement connecting himself with the crime, which, under such circumstances, was refused by the County Attorney of Titus County.
By setting out these details of the facts, we by no means make them exclusive, but have considered the facts as a whole.
Our conclusion is, and we so hold, that, under the facts presented, the confession was not freely and voluntarily made.
More than thirty years ago, Judge Davidson, speaking for this court in Robertson v. State, 195 S.W. 602, 81 Tex.Crim. R., said: "A voluntary confession is just what it says and ought to be voluntarily given, and not forced or extorted in any manner, even by overpersuasion or promise or threats." What was there said is just as true today as it was the day it was said.
The conclusion here reached is that the trial court erred in admitting the confession in evidence.
While the question here presented has been treated and the conclusion reached under the statutes and decisions of this court, the reversal of the case is in keeping with the recent decision of the Supreme Court of the United States in White v. State of Texas, 310 U.S. 530, 60 S. Ct. 1032, 84 L. Ed. 1342,139 Tex. Crim. 660, 128 S.W.2d 51.
For the error discussed, the judgment is reversed and the cause 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.
ON STATE'S MOTION FOR REHEARING.