Henson v. State

• Decision Date: 09 December 1953
• Docket Number: No. 26609,26609
• Citation: 266 S.W.2d 864,159 Tex.Crim. 647
• Parties: HENSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 864

266 S.W.2d 864

159 Tex.Crim. 647

HENSON v. STATE.

No. 26609.

Court of Criminal Appeals of Texas.

Dec. 9, 1953.

Rehearing Denied March 3, 1954.

Second Motion for Rehearing Denied April 14, 1954.

Al Clyde, Eva Barnes, Fort Worth, for appellant.

Robert M. Allen, County Atty., Gordon R. Wellborn, Sp. Prosecutor, Henderson, Wesley Dice, State's Atty., Austin, for the State.

DAVIDSON, Commissioner.

This is a conviction for nighttime burglary of a private residence, with punishment assessed at ninety-nine years in the penitentiary. The felony alleged to have been intended by the burglary was that of rape.

About twelve o'clock on the night of December 3, 1952, Dr. Hilbun, a physician of Henderson in Rusk County, was called at his home to come to the hospital to assist in an emergency operation. He left his wife asleep in the residence.

In view of the matters presented for review, it would serve no useful purpose to detail the facts further than to say that they are sufficient to show that appellant, after Dr. Hilbun had left, broke into the house, went to the bedroom of Mrs. Hilbun, and there, after she resisted his advances, shot her three times with a pistol, and then fled from the house.

Mrs. Hilbun was unable to positively identify the appellant as her assilant. His identity, as well as his guilt, is shown, primarily, by his written confession, which the state used in evidence.

The confession played an important part in the establishment of the state's case.

This appeal turns, primarily, upon the receipt in evidence of the confession over appellant's objection that it was coerced and forced from him.

We state the facts deemed pertinent to the question thus presented:

Shortly after the offense had been committed, appellant was arrested in hiding at a servant house on the residential premises of the Hilbuns, where appellant's former wife, a servant of the Hilbuns, lived.

Appellant was taken to the hospital and into the presence of Mrs. Hilbun, who had been carried there after being shot. She stated: 'I don't think it was Alex, you all carry him on.'

From the hospital, the officers took appellant to jail, where paraffin was applied to his hands to determine the existence of nitrates thereon.

Appellant was then taken by officers Washburn and Newbill to Rusk, the county seat of Cherokee County, which adjoins the County of Rusk. This was the night of December 4. The next day these officers came to the jail, talked with appellant, and, according to appellant, beat and bruised him by kicking and knocking him out of and hitting him with a chair. The next day, December 6, appellant was carried by the officers to Austin and there given the lie detector test, following which the officers started back to Henderson with him. On the way, near Palestine, officer Washburn allegedly tightened the hand cuffs around appellant's wrists to the extent that the circulation of the blood was impeded and his hands became numb. During the trip he was repeatedly beaten and whipped by the officer. Upon reaching Rusk, he was again placed in jail.

A few days thereafter, he was taken by the officers to Beaumont, where he was given what he called the 'truth serum' in his arm. After the test had been completed, he 'woke up,' and officer Washburn and an unidentified 'other fellow' beat, whipped, choked, and kicked him, according to appellant's testimony, and one of his teeth was knocked out.

Appellant further testified that while in Beaumont Washburn said to him:

'When I get back to Henderson I am going to get that lying wife of yours and she is going to get just what you done got. * * *

'We are going right on back and get her.'

From Beaumont appellant was taken to Henderson to jail. One of the jailers there told him that his former wife (appellant's) had been arrested and was then in jail.

On the receipt of this information, appellant decided to make a statement and was taken by the sheriff to the office of the county attorney, to whom the confession was made.

There was evidence as to appellant's confinement and incarceration after and subsequent to the making of the confession. Those facts are not further adverted to or set forth, inasmuch as they are not deemed material as furnishing a basis for the confession or upon which the confession had theretofore been made.

Appellant insisted that the immediate cause of his making the confession was, quoting from his testimony: 'because they said they was going to punish me as long as I didn't make one and was going to treat Katie (his former wife) the same way,' and that he signed the confession to prevent further punishment by the officers.

Upon the trial of the case, appellant repudiated the confession and insisted that the statements contained therein were not true. His defense was that of alibi.

The facts heretofore set out are taken and shown entirely from the appellant's testimony.

The admissibility of a confession in cases such as here presented is, and must be, determined from the undisputed facts. It becomes material, then, to see what facts or testimony given by appellant were challenged by the state's witnesses.

In the first instance, each and every officer who appellant claimed beat, whipped, choked, and kicked him denied any such treatment and, in support of such denial, examining physicians testified that his body evidenced no signs of physical abuse or mistreament. The officers denied any threats against appellant or his ex-wife, contrary to appellant's claim.

The sheriff, to whom appellant first made known that he would make the confession, testified that such act on appellant's part was entirely voluntary, without any suggestion from him that he make it.

The sheriff also testified that when appellant first made known to him that he would make the confession, he advised him to 'study about this tonight' and that it was not until the following morning that appellant willingly went with him to the office of the county attorney and there made the confession to the county attorney.

Appellant was not carried before a magistrate at any time prior to the confession.

The record does not reflect whether appellant was deprived of the right to see or to converse with any persons other than those connected in some manner with law enforcement, from the time of his arrest until long after the confession was made.

It may be said, then, that in addition to the officers' failure to take appellant before a magistrate, his being in the custody of the officers, and his confinement, the undisputed facts show: the paraffin test, the trip to Austin and the lie detector test, the trip to Beaumont and the truth serum test, and the arrest and incarceration of his former wife.

It is significant that neither party attempted to show that the making or the result of either of the tests was used to persuade appellant to make a confession. Appellant did not so claim in his testimony.

There is an absence of any testimony showing or tending to show that while appellant was in jail, under arrest, or being carried from one place to another, he was subjected to long or continuous questioning by the officers. Appellant, by his testimony as we understand it, makes no such claim.

Reduced to its final analysis, then, the claimed inadmissibility of this confession turns upon the undisputed facts that appellant was not carried before a magistrate, was held in jail for nine days before the confession was made, was subjected to lie and truth serum tests, was carried to and placed in different jails, and his former wife had been arrested and placed in jail in connection with the alleged crime.

We have repeatedly refused to hold that failure to take an accused before a magistrate, as is contemplated by statute, Art. 217, Vernon's Ann.C.C.P., of and within itself requires the rejection of a confession made while under arrest. Dimery v. State, Tex.Cr.App., 240 S.W.2d 293; Shook v. State, Tex.Cr.App., 244 S.W.2d 220; Leviness v. State, Tex.Cr.App., 247 S.W.2d 115; Golemon v. State, Tex.Cr.App., 247 S.W.2d 119; Gasway v. State, Tex.Cr.App., 248 S.W.2d 942; and Paris v. State, Tex.Cr.App., 249 S.W.2d 217.

We are aware of no authority which warrants the rejection of this confession merely because the appellant was held in custody and confined to jail. In this connection, we are not unmindful of our holding in Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419, and the holding of the Supreme Court of the United States in Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801. We do not understand that those cases so hold.

Such, also, may be said of the lie detector and truth serum tests. There is no suggestion in this case that such tests caused, brought about, or in any manner contributed to, the making of the confession.

The overwhelming preponderance of the evidence shows that appellant was not physically abused or mistreated by the officers. His contention, then, that he confessed in order to prevent his former wife from being subjected to such character of treatment must be regarded as having no foundation in fact. Any fear that appellant entertained as to his former wife being punished legally for any act on her part growing out of or being a part of the crime charged is not such an underlying cause as would render the confession involuntary. Lopez v. State, 12 Tex.App. 27.

Here, the jury, under the trial court's full and fair presentation in his charge of the issues of fact touching the voluntariness of the confession, found against the appellant's contention. The trial court approved that finding. We, ourselves, have made an independent examination of the facts and are convinced of the correctness of such finding.

The conclusion is reached, therefore, that the confession was properly admitted in evidence and...