Davis v. State, 29246

• Decision Date: 04 December 1957
• Docket Number: No. 29246,29246
• Parties: George M. DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 880

308 S.W.2d 880

165 Tex.Crim. 456

George M. DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 29246.

Court of Criminal Appeals of Texas.

Dec. 4, 1957.

Rehearing Denied Jan. 15, 1958.

Charles F. Mitchell, Clyde W. Woody, Houston, for appellant. Drew Bacon, Dist. Atty., Newton, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is murder; the punishment, life.

The deceased, Fred Bourghs, lived in a three room house in the northern part of Sabine County, his nearest neighbor's home being about a mile away. Mr. Bourghs was about 80 years old.

On August 25, 1954, the bloody and battered body of Mr. Bourghs was found in his home, and the medical testimony was that he had been dead for some eighteen hours.

The evidence shows beyond question that multiple blows inflicted with some character of blunt instrument had crushed the head of Mr. Bourghs and caused his death.

That the deceased was murdered by someone is not seriously questioned. In fact witnesses were permitted to testify without objection that he was murdered.

To connect appellant with the murder, the State relied upon a statement in writing offered as the voluntary confession of appellant made and signed while he was under arrest some seventeen months after the murder.

When the confession was identified and shown to have been signed by appellant after the statutory warning and after the officer to whom it was made had testified that he was sure that there was no persuasion, no undue influence, no promises and no force of any nature used on appellant to induce the statement it was offered in evidence.

Appellant objected and requested that he be permitted in the absence of the jury to develop the surrounding facts in order that the court might determine the inadmissibility of the confession as a matter of law, but the trial court declined the request and permitted the confession to be introduced.

Before the confession was read to the jury appellant's counsel stated their position as being that the confession was not freely and voluntarily made and was inadmissible as a matter of law, and that it would be prejudicial to the defendant to have it introduced before the jury without the court first hearing the testimony regarding the facts surrounding its taking.

The admissibility of evidence is a question of law for the court, and this is true as applied to a confession the voluntary character of which is contested.

The rule is thus stated in Bingham v. State, 97 Tex.Cr.R. 594, 262 S.W. 747, 748, 749:

'The learned trial judge appears to have overlooked the fact that in this state as well as in other jurisdictions where the question of the voluntary character of the confession is finally submitted to the jury it is still the duty of the court to first determine its admissibility, and, if an issue of fact be raised, then to let all the evidence upon the issue go to the jury in order that they may be able to pass upon that question as well as to determine the weight to be given the admission or confession. * * * Ruling Case Law, Sec. 123, states the rule as follows:

"To enable the court to make up its mind as to the voluntariness of a confession offered in evidence a preliminary investigation into the circumstances surrounding the confession is ordinarily made, at least when the defendant raises an objection to the admissibility of the confession. The better rule and the one supported by the weight of authority is that a preliminary investigation made by the court to determine whether a confession offered in evidence is voluntary and therefore admissible should be made out of the presence of the jury, especially if the defendant requests it."

We are not in position to hold that appellant, had he been permitted to do so, could not have proved in the absence of the jury that the confession was inadmissible as a matter of law.

On the other hand, we express grave doubt as to the admissibility of the confession under the record made before the jury, and point out the following:

The confession was signed at Beaumont, Jefferson County, Texas, on January 28, 1956, complaint having been filed and warrant issued for appellant's arrest the previous day.

Appellant, however, was first interrogated on January 23, and on January 24 was taken to Beaumont and placed in jail and was given a 'lie detector test'; was returned to Jasper County and placed in jail there about 5 a. m. on January 25; was interrogated during much of that day, and the following morning, (January 26) was taken to Austin where a second polygraphic examination was given him. One of the officers testified that he was not in custody until after this test, but was a suspect until that time.

On the return there was a lay-over at Woodville during which appellant was interrogated. During this interrogation officers exhibited to him a photograph showing the battered and bleeding head and face of the deceased, the officer remarking 'when he handed them pictures to the jury what they would do * * *.' The photograph is made a part of the record on appeal.

The officers who were named as having so exhibited this and other photographs to appellant, and as making such remarks, made no denial.

Appellant was again placed in jail at Jasper about 3:30 a. m. on January 27, 1956. His interrogation was resumed about 7:30 a. m. and continued, with some interruptions, until late in the afternoon.

The complaint was filed at Hemphill that afternoon and the return on the warrant shows that it was executed at about 4 o'clock p. m. at Jasper.

Early the following morning appellant was again taken to Beaumont where sodium pentathol ('truth serum') was administered to him and thereafter the confession was signed.

There was much testimony pro and con regarding the treatment accorded appellant by the officers who had him in custody, but the facts stated are in effect those shown by the undisputed evidence. If appellant's testimony be true his confession was not voluntary and was inadmissible.

Substituting the horrible scene portrayed by the photographs exhibited to appellant for the visit to the scene of the alleged crime, the facts are quite similar to those in Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419, where we held that under the decisions of the Supreme Court of the United States therein cited, the confession was inadmissible, and its use a denial of due process.

The fact that a complaint was filed and warrant executed before the confession was signed is not alone sufficient to distinguish this case from Prince v. State, supra.

In the event of another trial the trial court should afford the defendant the opportunity to make his proof in the absence of the jury as to the facts and circumstances surrounding the taking of the confession, and rule upon the admissibility of the confession as a matter of law.

The pictures of the body of the deceased depicting the bloody condition of the floor and body should be excluded upon another trial as prejudicial and tending to prove no controverted issue. Shaver v. State, Tex.Cr.App., 280 S.W.2d 740.

Nothing herein should be construed as condemning the use of the polygraph as a means of interrogation. Webb v. State, Tex.Cr.App., 291 S.W.2d 331; Hulen v. State, 157 Tex.Cr.R. 507, 250 S.W.2d 211; Gasway v. State, 157 Tex.Cr.R. 647, 248 S.W.2d 942, and Paris v. State, 157 Tex.Cr.R. 580, 249 S.W.2d 217. However, upon another trial, the testimony which in effect revealed the results of the polygraph tests should be excluded from the jury. Peterson v. State, 157 Tex.Cr.R. 255, 247...