Gilbert v. State, 26673

• Decision Date: 09 December 1953
• Docket Number: No. 26673,26673
• Citation: 265 S.W.2d 100,159 Tex.Crim. 424
• Parties: GILBERT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 100

265 S.W.2d 100

159 Tex.Crim. 424

GILBERT v. STATE.

No. 26673.

Court of Criminal Appeals of Texas.

Dec. 9, 1953.

Rehearing Denied Feb. 17, 1954

Bernard A. Golding, Henry E. Doyle, Francis L. Williams, Houston, for appellant.

William H. Scott, Dist. Atty., King C. Haynie, Asst. Dist. Atty., Houston, Wesley Dice, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is murder; the punishment, 99 years.

This is a companion case to Sampson v. State, Tex.Cr.App., 268 S.W.2d 661, but in order to properly discuss appellant's contentions the facts will be stated fully.

It was shown that Mrs. McCasland, while working in a flower shop alone, met her death on January 6, 1953, between 3:00 and 3:35 p. m. as the result of a gunshot wound. The money from the flower shop was taken. There is some evidence that she received other wounds than those caused by the firing of a weapon. In this case it was shown that some ten days prior to the homicide the appellant had come to the flower shop with a stick in his hand ostensibly looking for work.

The appellant and his co-indictee were arrested on suspicion of another offense on January 7. The confession implicating appellant and his co-indictee was dated January 11.

The confession introduced in evidence relates that on January 6 Sampson (his coindictee) came to his home; that the two of them 'pushed off the Chevrolet and got it started'; that he saw a pistol in Sampson's possession; that they went by Sampson's house and got a round stick with a piece of iron on one end to be used by him in the robbery of a flower shop which they had planned; that this same stick had been shown to the appellant by Captain Frazier (of the sheriff's office); that they drove by a flower shop, noticed that no customer was there; that they left the motor running and entered the shop; that Sampson asked the woman in attendance for change for a $5 bill, and when she turned her back the appellant hit her on the head with the iron end of the stick; that his first blow staggered the woman; that he hit her again; that she fell to the floor; that Sampson walked over and shot her through the head; that they then took the money out of the cash box and left the premises, dividing the money as they drove away. The confession concludes with the statement that appellant saw Sampson the next day, and Sampson reported that he had thrown the pistol away and carried the stick back home and put it under the bed.

The sheriff and his deputy Middleton testified that they searched Sampson's home, found a stick under the bed, and carried it to the Department of Public Safety in Austin for testing. Chemist McDonald of the department testified that he performed tests on the stick with the piece of iron on one end, delivered to him, and found human blood on or near the piece of iron fastened to the stick.

The defense offered W. B. Sampson, who testified that after the flower shop murder the officers came to the home he shared with appellant's co-indictee and got a stick from under the bed. Appellant, on cross-examination, testified that his automobile did not have a starter and that it had to be pushed in order to get it started.

The pistol was never found, though a search was made for it.

The appellant's defense was that of alibi, and he was in a measure supported by some of his witnesses. Appellant testified, however, that he was within two blocks of the flower shop at 3:00 p. m. on the day of the homicide.

Unless the confession was inadmissible as a matter of law, the evidence is sufficient to support the conviction.

Appellant, while testifying is his own behalf, denied that he signed the statement offered in evidence by the State. He claimed brutality and admitted signing a statement, but claims that it was not read to him and said that he signed it on January 7 rather than January 11, which is the date found in the heading of the confession and the date on which the State witnesses say it was signed.

By authority of Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330, we shall test the voluntary nature of the confession offered in evidence by the State applying the undisputed evidence rule.

In Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, we find a very accurate guide for this adjudication. We adopt the subjects of inquiry enumerated in that case:

1. Physical violence.

The appellant testified that he was whipped by the officers who had him in custody with a rubber hose; that one of them mashed his hand by stepping on it, and another beat him over the head; and that they continued this conduct toward him for approximately a week after he was arrested.

Each of the officers identified by the appellant denied that he struck the appellant at any time while he was in their custody or that he had inflicted any brutality upon him in any manner.

It is undisputed that the appellant was taken immediately after the State's evidence shows that he signed the confession to a hospital where he was given a physical examination. The doctor testified that he carefully inspected the appellant's entire body and found no marks of violence anywhere. The doctor gave his opinion that if the appellant had been beaten by a rubber hose with any force at all at any time during the week preceding his examination he would have been able to detect it. He further testified that he saw nothing that would indicate that the appellant had lost any great amount of sleep (the pertinency of which will be later noted).

2. Psychological coercion.

The homicide occurred near the city limits, some six miles from the sheriff's office, and somewhere in the vicinity of where the appellant lived. In order to facilitate his investigation of the murder, the sheriff rented a nearby cafe, complete with furniture, which happened to be vacant at the time, and there established a temporary headquarters. It was there that the appellant and the many other suspects were questioned. At night the appellant was lodged in the jail, but not questioned there. It seems to have been generally known that the cafe was the sheriff's headquarters for the investigation of the flower shop murder. In his cross-examination the appellant referred to this place as 'imaginary headquarters.' The record does not support the conclusion that there was anything improper or sinister about the procedure here involved. A murder had been committed; it became the duty of the sheriff to question all suspects with the utmost dispatch. The fact that he interrogated a number of people does not in itself alone mena that he violated the constitutional rights of all or any of them. We cannot escape the conclusion that the situs of his interrogation was more favorable to the appellant than had he been questioned against a background of clanging jail doors.

Appellant testified that at one time during his interrogation he was carried out in the country at night. This was denied by the officers. The appellant testified that he was carried out of the temporary headquarters at seven o'clock each morning and not returned to jail until three o'clock the next morning. This likewise was denied by the officers, but they did state that the appellant was out at the temporary headquarters about a half dozen times. It is impossible to determine from the record just how long the appellant was questioned on these occasions. This is so because the police questioned some fifteen other suspects during the time they were questioning the appellant. The only evidence which raised the issue of long and uninterrupted questioning was that part of appellant's testimony where he said that one officer questioned him for ten minutes followed by a ten or fifteen minute wait, and then another officer asked him more questions and that three officers were present at the time. To hold that this questioning was so oppressive as to overwhelm the appellant's powers of resistance would be in the teeth of the language of the Supreme Court in the Stein case when they said [346 U.S. 156, 73 S.Ct. 1093]:

'But we have never gone so far as to hold that the Fourteenth Amendment requires a one-to-one ratio between...