McIlwain v. State
Decision Date | 18 May 1966 |
Docket Number | No. 39566,39566 |
Citation | 402 S.W.2d 916 |
Parties | Robert Earl McILWAIN, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
George S. McCarthy, Amarillo, for appellant.
Dee D. Miller, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, death.
The badly decomposed body of Sergeant Robert John Roeske was found in a locker of his room in Barracks 3419 at the Amarillo Air Force Base on July 6, 1965.
Evidence was offered showing that his death was caused by choking and strangulation with a necktie, as alleged in the indictment.
A written confession of appellant, made to Detective Lieutenant Charles Hollis of the Amarillo Police Department on the night of July 15, 1965, was admitted in evidence following a hearing before the court in the jury's absence.
At the hearing, appellant testified and elicited from Lieutenant Hollis and other officers testimony to the effect that upon being advised of his right to an attorney he asked to use the telephone to call Mr. Miller, at the Worth Hotel, appellant's testimony being that he wanted to call Miller so that he could call an attorney.
The trial judge disposed of the issue of denial of the right to counsel in his ruling at the conclusion of the hearing:
Appellant further testified at the hearing before the court that prior to making the statement he talked to Captain Wynne in a back room in the Petroleum Building for at least an hour and a half, and Capt. Wynne gave him two polygraph tests; that after the first test Capt. Wynne told him he was lying. Appellant also testified:
Captain Wynne was not called to testify.
The state contends that appellant's testimony is contradicted by the testimony of Lt. Hollis after the hearing in the jury's absence that appellant 'wasn't mistreated in any way.' We do not agree.
In his testimony before the court Lt. Hollis testified that he left Captain Wynne's office about 10:30 and later returned and took the statement, and testified:
Assuming, however, that an issue of fact was raised as to whether Police Captain Wynne made the statements attributed to him by appel...
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