Alexander v. State, 23907.
| Decision Date | 28 January 1948 |
| Docket Number | No. 23907.,23907. |
| Parties | ALEXANDER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Denton County; B. W. Boyd, Judge.
Willie A. Alexander was convicted of an aggravated assault and battery, and he appeals.
Affirmed.
Earl L. Coleman, of Denton, for appellant.
W. K. Baldridge, Co. Atty., and Rogers Teel, Asst. Co. Atty., both of Denton, and Ernest S. Goens, State's Atty., of Austin, for the State.
Appellant was convicted for the offense of an aggravated assault and battery. His punishment was assessed at confinement in the county jail for a period of one year and a fine of $1,000.
The record shows that on Sunday, May 11, 1947, appellant and Johnnie Kinney were together late in the afternoon riding in appellant's automobile on a highway between Denton and Pilot Point. Sometime during the early part of the night, the body of Johnnie Kinney was discovered lying by the side of the highway. The Justice of the Peace was summoned by the parties who discovered the body. An examination of the body by the Justice of the Peace revealed the fact that he was still alive but had been severely beaten. An ambulance was called and Kinney was taken to a hospital at Denton where he received medical attention. However, he died on the 6th day of June as a result of the injuries which had been inflicted upon him.
Appellant was subsequently arrested and charged with the offense. While under arrest and confined in jail, he admitted that he had beaten Kinney with a heavy army shoe which he said was in his automobile; that he had thrown the other shoe out in some weeds. He also told them that he had lost his watch, and that he had pulled some part of the seat covers off and thrown them away. As a result of his statement, the officers found a heavy army shoe, as well as his watch, in the car. He then accompanied the officers to the place where he claimed he had thrown the mate to the shoe in question, and upon a search, the shoe was found in the weeds.
By Bills of Exception Nos. 1, 2 and 3, appellant complains of the action of the trial court in permitting the State to prove by the officers that he had made a statement to them relative to the manner and means he employed in inflicting the wounds on Johnnie Kinney at the time and place in question. He objected to the testimony given by the officers on the ground that he was under arrest and confined in jail at the time; that it was an oral statement not reduced to writing, and that the statutory warning was not given to him. It is true that an oral confession made by one while under arrest or confined in jail charged with an offense is not admissible against him concerning the offense for which he is on trial unless in connection with such confession he makes statements of facts or circumstances which lead to the recovery of the instrument with which he states the offense was committed. In the instant case, appellant informed the officers that he had borrowed a pair of army shoes; that he beat Kinney with one of the shoes which he said was in his car; that he had thrown the other shoe out of the car at a designated place. Both shoes were found where he stated they were located. There is evidence that the officers had not found the shoe in the automobile prior to the time he told them it was there, although they had found his automobile. This is strengthened by the fact that they found his watch in the car. If the officers had theretofore made a search of his car and had found the shoe, they most likely would have found the watch and taken possession thereof as a circumstance which may have led to the identity of the party who committed the offense. We believe that under the facts here disclosed, appellant's confession was admissible.
In the case of McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157, 160, this court in discussing Art. 727, C.C.P. (formerly Art. 810, C.C.P.), said in substance that a voluntary confession of the accused, when not in writing and signed by him after due warning, is not admissible in evidence, "unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed." The court further said:
"It is our understanding of this exception that it sanctions the admission in evidence of the confession in its entirety and not alone that part of it which leads to the discovery of the instruments used in the commission of the offense."
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