Canedo v. State, 19252.

• Decision Date: 05 January 1938
• Docket Number: No. 19252.,19252.
• Citation: 113 S.W.2d 902
• Parties: CANEDO v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W.2d 902

CANEDO v. STATE.

No. 19252.

Court of Criminal Appeals of Texas.

January 5, 1938.

Rehearing Denied March 3, 1938.

Commissioners' Decision.

Appeal from District Court, Bexar County; W. W. McCrory, Judge.

Selanes Canedo was convicted of murder with malice, and he appeals.

Judgment affirmed.

C. L. Patterson, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of murder with malice and his punishment was assessed at death.

By bill of exception No. 1, appellant complains because the State was permitted to offer in evidence his written confession, in which he confessed that he killed the deceased for the purpose of getting some money off his person. Appellant objected to the introduction of said confession on the ground that he was under arrest at the time; that his confession was not voluntarily made, but was obtained under duress, etc.

At the time the confession was offered by the State, there was no evidence of any mistreatment of appellant by the officers; consequently it was admissible at that time. Appellant subsequently testified in substance that he was whipped by the officers until he made said confession, but that, notwithstanding such treatment by the officers, the confession was, in substance, a true and correct statement of how the homicide occurred.

The count instructed the jury that, if they believed the written statement by appellant was not freely and voluntarily made, or if they believed that the same was induced by duress, threats, or coercion upon the part of the officers, or if they had a reasonable doubt thereof, they should not consider it for any purpose. It occurs to us that, inasmuch as appellant entered a plea of guilty and testified in substance to the same material facts as were contained in his confession, and in view of the court's instruction to the jury, appellant's legal rights were adequately protected. He insists, however, that the confession was very prejudicial and may have caused the infliction by the jury of the death penalty.

Even though it be conceded that it was harmful, it was not more so than his own testimony to the effect that he killed the deceased for money; that he would have killed him even if he had held up his hands and said: "For God's sake, don't kill me."

In the case of Rueda v. State, 101 Tex. Cr.R. 651, 658, 277 S.W. 116, this court held that, if a defendant took the witness stand and testified to substantially the same facts contained in his confession, the error, if any, in the admission of the confession in evidence, was harmless. See, also, Mangum v. State, 126 Tex.Cr.R. 129, 70 S.W.2d 180; Wells v. State, 127 Tex.Cr.R. 426, 76 S.W.2d 1047.

If appellant desired to have the confession excluded, he should have requested the court to retire the jury at the time and he should have produced testimony in support of his objection to the effect that it was not freely and voluntarily made. He did not do so, but contented himself with the mere objection on the grounds stated.

By bills of exception Nos. 2, 3, and 4, appellant complains because the trial court would not permit him, upon a hearing of a motion for a new trial, to prove by the jurors who tried the case that they heard the district attorney in his closing argument say that appellant had not told the whole truth regarding Evelyn Guckian's connection with the offense; that, if the jury would give him the death penalty, it would force him to tell the whole story; that the jury should make an example of the defendant and assess the death penalty to deter others; that the jury in arriving at the death penalty took said argument into consideration.

The State objected thereto on the ground that the jury could not impeach their verdict. The court qualified said bills, and in his qualification stated that appellant testified that the deceased was his friend; that he killed him for whatever Evelyn Guckian was going to give him; that during the investigation of this case he talked to the district attorney and throughout the conversation did his best to protect Evelyn just as he was doing now; that he withheld any information about her, etc.; that counsel for appellant in his argument to the jury contended that appellant was a mere tool in the hands of Evelyn; that she was the real murderer; that, if the jury gave the appellant the death penalty, she could not be convicted; that she hoped the jury would give him the death penalty so that he would be forever removed as a witness; that no objection was made to the argument of the district attorney, and it was first complained of by appellant in his motion for a...