Baird v. State

246 S.W.2d 192, 156 Tex. Crim. 644, 1951 Tex. Crim. App. LEXIS 1712

• Court: Court of Criminal Appeals of Texas
• Decided: December 19, 1951
• Docket: No. 25509
• Status: Published

Opinions

BEAUCHAMP, Judge.

The appeal is from a conviction for burglary with a sentence of two years in the penitentiary.

Appellant and two others were alleged to have entered a hardware store in the town of Garden City and to have taken from it some guns and other articles described by the evidence. E. R. Morgan and wife lived in an apartment at the rear of their cafe across the street from the harware store. Sometime around three o’clock in the morning they heard the crashing of glass. Upon investigating they saw some men in the store. The men left, got in a dark Mercury car and drove away. Mr. Morgan notified the sheriff who set up a road block in various directions, resulting in the capture of appellant a short while thereafter.

The officers who effected this block testified that before this appellant was stopped they saw certain articles thrown from the car. They were also of the opinion that two men left the car. Morgan’s information to them was to the effect that three men were seen in the store. Appellant was arrested and carried to jail, after which the officers returned to the spot and made a search, recovering some guns which were identified by the owner of the hardware store as being property taken from it at that time. They also found a screwdriver in the back of appellant’s car which the owner of the store identified as property taken from the store at the time of the burglary.

This evidence is sufficient within itself to support the state’s case. In addition appellant signed a written confession, in due form of law, which is introduced as state’s exhibit. Appellant did not testify but his wife did and her evidence constituted an attack upon the voluntary character of his confession. She told of a conversation between her husband and Mr. Emory, Sheriff of Sterling County. According to her testimony the sheriff unduly persuaded appellant to make this confession. The statement which she attributed to Mr. Emory would, if believed by the jury, destroy the voluntary character of the written confession. It is contended by appellant that this was not denied and no issue made of it for the jury, as a result of which the court should have refused to admit the statement in evidence.

The proposition of law is sound but the facts do not sufficiently support the contention. Walter Teel, Sheriff of Glass-cock County, refuted her story as a witness in behalf of the state. He admitted that he and John Wood were present with Mr. Emory at the time detailed by Mrs. Baird. He said he did not hear Sheriff Emory make any promises, did not hear him tell appellant that he would clear the thing up if he would tell who the other men were, or that he would dismiss the two cases against him in Sterling County. He said he did not make the statements attributed to them and, “I say that Sheriff Emory did not tell him that.” He testified, further: “I did not hear any officer tell him if he would give this statement and plead guilty and turn state’s evidence that I would do everything I could for him. No such promises were made to him.”

The state would be in much better position if they had produced Mr. Emory and shown by him that he did not make such statement. However, the foregoing quoted testimony ■ of Mr. Teel is sufficient to raise an issue for the jury.

Appellant vigorously attacks the court’s charge in submitting this issue to the jury but we think his complaint about the charge is not well founded. The issue was submitted to the jury and their finding constitutes a finding of fact against appellant’s contention that the confession was not voluntarily given.

Appellant, in his brief, has discussed nineteen bills of exception which we have carefully examined and have reached the conclusion that neither of them shows error. Bill of Exception No. 9 complains of certain argument made by the prosecuting attorney. The bill itself admits that a portion was in reply to argument made by appellant’s counsel and there is nothing to show that any part of it was not in reply to or suggested by argument of appellant’s counsel.

Bill of Exception No. 11 complains of the court’s charge as a whole because the same fails to make any reference to “the law of exculpatory statements contained in the confession.” We have examined the item referred to and find nothing exculpatory about it.

Several of the bills complain of the admission in evidence of the articles identified as coming from the burglarized premises. There can be no question about the proper ruling having been made on these objections.

Finding no reversible error the judgment of the trial court is affirmed.