Blackshear v. State

• Decision Date: 17 June 1936
• Docket Number: No. 17770.,17770.
• Citation: 95 S.W.2d 960
• Parties: BLACKSHEAR v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W.2d 960

BLACKSHEAR v. STATE.

No. 17770.

Court of Criminal Appeals of Texas.

June 17, 1936.

Appeal from District Court, Harrison County; W. H. Strength, Judge.

Barney Blackshear was convicted for murder, and he appeals.

Reversed and remanded.

P. O. Beard, Paul Warren, and M. M. O'Banion, all of Marshall, for appellant.

Benjamin Woodall, Co. Atty., and Reagan R. Huffman, Asst. Co. Atty., both of Marshall, G. L. Florence, of Gilmer, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for murder; punishment being assessed at death.

The trial was had in Harrison county on a change of venue from Smith county.

Opinions on two former appeals are found reported in 123 Tex. 111, 58 S.W. (2d) 105, and 126 Tex. 417, 72 S.W.(2d) 601.

The testimony adduced by the state on the present trial is substantially the same as that set out in the opinion on the first appeal. However, formerly appellant did not testify, whereas upon the present trial he took the stand and denied that he committed the homicide. Also, he repudiated his confession, and gave testimony to the effect that the torture he endured while being confined in a dungeon caused him to state to the officers that he killed Viola Brimberry (deceased) and her husband, George Brimberry. His testimony also raised the issue of alibi.

Eliminating the confession, the state would rely entirely upon circumstantial evidence. As showing the materiality of the written statement, we quote from Blackshear v. State, 123 Tex.Cr.R. 111, 58 S.W. (2d) 105, as follows: "In his written statement, appellant declared that he went to the home of the Brimberrys for the purpose of committing robbery; that he enticed George Brimberry away from the cabin and killed him by hitting him over the head with an iron wrench; that he then returned to the cabin and killed deceased by striking her over the head with a smoothing iron; that he took money from the parties amounting to $17; that he secured an old magazine and wrote upon it `A negro killed me,' and placed the magazine in the left hand of deceased, and the pencil in her right hand. Further it was stated in the confession that he (appellant) had become infatuated with a married woman, with whom he had lived for some time; that he had left her, but she had insisted that he come back to her; that he had no money, and committed the murder and robbery for the purpose of securing money."

On the former trials appellant appears to have interposed no objection to the introduction of the confession. On the present trial he timely and properly interposed his objections, and when the testimony was concluded he renewed said objections and requested the court to withdraw the confession from the consideration of the jury.

It was an admitted fact that appellant was incarcerated in a dark cell for approximately six days and nights. He testified that the fear that he would have to undergo further incarceration in said cell caused him to make the statement. He said: "I signed it to get out of that dark cell. I wouldn't have signed it for any other reason. I never signed it for any other purpose. I did not tell them right then that the statement wasn't true. I had told them before I made the statement that it wasn't true. During the time I was in the dark cell they put the feed in there but I didn't eat. I could not eat because of the odor in there. That odor was from—you want me to tell you?" He testified further: "I made that statement in order to get out of the dark cell. I would have made one if they had asked me about kidnapping the Lindbergh baby in order to have gotten out of that dark cell. I would rather they had have taken me out and shot me than to have gone back in that dark cell."

The evidence shows that when first arrested appellant was placed in the dark cell by orders of the arresting officer. He was taken out in a few days by the same officer and an effort made to secure a confession. Upon failure to secure it, he was again placed in the same dark cell, where he remained until the confession was obtained. After having been...