Humphries v. State
| Decision Date | 14 November 1956 |
| Docket Number | No. 28473,28473 |
| Citation | 295 S.W.2d 218,163 Tex.Crim. 601 |
| Parties | Loretta HUMPHRIES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Byron Matthews, Ronald Aultman, Randell C. Riley, Fort Worth, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary; the punishment, 2 years.
The prosecuting witness Deaver testified that his home was entered on June 18, 1955, without his consent, and a sewing machine and a rifle taken therefrom. He described the burglarized premises as being: Located about a mile east of Bluff Dale on the right hand side and to the north of Highway 377 as one travels the same from Fort Worth to Stephenville.
He stated that his home was on a higher elevation than the highway and had a front porch, and that the front of the house was of white pine construction and had been painted with a clear varnish shellac.
Two confessions of the appellant were introduced in evidence. In them, she stated that she lived in Fort Worth; that in June of 1955 she and two male companions 'came out toward Stephenville' and 'just before we got to Bluffdale, Texas, they drove up on the right hand side of the road to a house that had a front porch and oak colored front.' In the second confession, the house was described as 'up on a little hill' and 'the front of the house was finished in natural colored varnished lumber.' The confessions continue: 'After getting these things (the sewing machine and the rifle) in the car they got in and we came on toward Stephenville.'
This, we have concluded, was a sufficient showing that Mr. Deaver's house was the one described in the appellant's confession.
The appellant did not testify in her own behalf but introduced other witnesses who stated that when they saw the appellant later on in the day charged in the indictment she bore the evidence of having been physically abused.
We shall now discuss the contentions advanced in the appellant's brief.
It is urged that the court erred in failing to charge the jury on her affirmative defense of duress in accordance with the terms of Article 38, Vernon's Ann.P.C.
Throughout her brief, the appellant refers to herself as the wife of a co-defendant Humphries. We do not think the record will support her in this. The offense occurred on June 18. On December 15, the appellant confessed to the crime. In that confession, she stated that she and Humphries 'were married about two months ago.' It is apparent that she was not Humphries' wife at the time the burglary was committed.
Aside from this subsequently created relationship, we have the following facts. One of the confessions recites that after the burglary the parties went on into the City of Stephenville, where they had a flat tire fixed, and after leaving there the appellant and Humphries got into a fight and she hitchhiked back into Fort Worth.
It was established by the witness State Ranger Roach that, while being interrogated concerning the crime, the appellant had told the officers that the fight with Humphries arose over his drinking and that she never intimated at that time that the burglary of the Deaver house had anything to do with the fight.
We fail to see how the issue of duress was raised. We cannot find in this record any evidence that the appellant did not voluntarily enter into this burglary. Her confession recites that she 'knew they were going in there to get some things' and 'they told me to hollow if I saw anyone coming.' The fact that she had a fight with the man who afterward became her husband later in the day and that following the fight she caught a ride into Fort Worth would not raise an issue as to whether she voluntarily participated in the first burglary. While it is true that appellant's counsel made a serious effort in his cross-examination of the State's witness to show that the appellant did not voluntarily enter into the burglary of the Deaver home and that she was intimidated by the man who later became her husband, we are not at liberty to give his questions the weight of evidence.
Appellant next contends that the court failed to charge on the burden of proof. In paragraph 2, the court charged on the presumption of innocence; and in paragraph 9, when the court came to apply the law to the facts, he instructed the jury to acquit the appellant unless they found her guilty beyond a reasonable doubt.
In Day v. State, 21 Tex.App. 213, 17 S.W. 262, the Court of Appeals held that a charge on the presumption of innocence such as paragraph 2 above was sufficient charge on the burden of proof.
In Glascow v. State, 50 Tex.Cr.R. 635, 100 S.W. 933, this Court held that a charge which told the jury that they must believe the accused guilty beyond a reasonable doubt was a sufficient charge on the burden of proof.
Appellant further contends that the court erred in not submitting to the jury the issue of the voluntary nature of the confessions. It has been noted that the appellant did not testify. We have concluded that the appellant's cross-examination of the officers who were present when she confessed did not raise an issue as to whether or not the confession was voluntarily made. The fact that she was in jail and needed to get home to her children does not in itself alone raise such an issue. Neither does the testimony of the officer that he told her it was always best to tell the truth, even though it did hurt sometimes, and that if she told the truth it would be better for her in the long run. Brown v. State, 153 Tex.Cr.R. 381, 220 S.W.2d 476, 481.
Appellant contends that the court erred in failing to grant her motion for continuance. We find no affidavit of the missing witness attached to the motion for new trial, nor do we find any showing under oath that the witness, if present, would have testified to the facts set forth in the motion. Such a showing is requisite. Morris v. State, 158 Tex.Cr.R. 516, 251 S.W.2d 731.
Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.
This is a conviction for the daytime burglary of the private residence of Harry Deaver.
According to the testimony of Deaver, his residence was broken into and a portable sewing machine and automatic rifle were taken therefrom on June 18, 1955, about eleven...
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State v. Smith
...can help anybody out at a time like this is the truth" did not render a confession involuntary); see also Humphries v. State , 163 Tex.Crim. 601, 295 S.W.2d 218, 220 (App. 1956) (holding that an officer's statement that it was "always best to tell the truth" did not render a confession invo......
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Simpson v. State
...if the charge, when read as a whole, adequately informs the jury on the issue of the burden of proof. Humphries v. State, 163 Tex.Cr.R. 601, 295 S.W.2d 218, 220 (1956). In paragraph VI of the charge the jury is instructed on the presumption of innocence and that each element of the offense ......
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PENA v. The State of Tex., 07-08-0501-CR
...told it would be best to tell the truth. Smith v. State, 91 Tex. Crim. 15, 237 S.W. 265, 267 (1922). See also Humphries v. State, 163 Tex. Crim. 601, 295 S.W.2d 218, 220 (1956); Brown v. State, 153 Tex. Crim. 381, 220 S.W.2d 476, 478-79 (1949). Even assuming Detective Davidson made a promis......
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Lyles v. State
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