Smith v. State

• Decision Date: 21 June 1939
• Docket Number: No. 20467.,20467.
• Citation: 132 S.W.2d 264
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W.2d 264

SMITH v. STATE.

No. 20467.

Court of Criminal Appeals of Texas.

June 21, 1939.

Rehearing Denied November 1, 1939.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Clarence Smith was convicted of the unlawful killing of another and he appeals.

Reversed and cause remanded.

Eugene Sherrod and Arthur Tipps, both of Wichita Falls, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the unlawful killing of Ernest Holmes, and was assessed a penalty of ninety-nine years in the penitentiary.

The facts show that Ernest Holmes was struck on the head by a blunt instrument sometime during the night of June 5, 1938, while in a garage, supposedly attempting to work on an automobile. The surrounding facts show that he must have been dazed by the blow, which was a severe one, and eventually he died from the wound, which was described by the witnesses as "a hole in his head."

Outside of certain confessions we are not able to find anything in the testimony of a conclusive character that connects this appellant with this crime, unless it be the fact that a short time prior to the time the deceased was injured the appellant evidently saw the deceased drop his pocketbook which contained some money in currency, thus furnishing the motive of robbery for the crime. There were a few further circumstances which were offered for what they might have been worth, showing appellant's activities around a cafe and dance hall across the street from where the deceased was injured, and the fact that appellant went to Burk Burnett on the following day, and outside of these confessions there was nothing further in the testimony that would tend to connect the appellant with the commission of this offense.

Appellant's first assignment of error is based upon the proposition that an extrajudicial confession alone is not sufficient to establish the corpus delicti in a trial for a criminal offense. This is a correct doctrine, but we fear appellant's attorneys misinterpret the phrase "corpus delicti". By such is meant the body of the crime, that is, in this present instance, the fact that Ernest Holmes is dead, and that he came to his death by means of unlawful violence administered to him by another. We think the evidence is fairly clear that some one struck Mr. Holmes with a certain hammer, upon which blood and a piece of skin were found, and that Mr. Holmes died from such a blow. We have thus before us an established fact that Mr. Holmes came to his death from such violence, and the corpus delicti is then present. Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989, is the leading case on the above proposition, and it has been consistently followed since Judge Hurt wrote it. The Reporter has epitomized a portion of that opinion in the following language taken from the syllabus of the State Report: "It is essential to a conviction for any degree of culpable homicide, first, that the deceased should be shown to have been killed; and second, this killing should have been proved to have been criminally caused by the act or agency of the defendant (another)."

As above herein stated, the circumstances connecting the appellant with the commission of this crime are rather meager; and in truth, in our opinion, the State was forced to rely almost, if not quite, wholly on the two confessions introduced in evidence.

The appellant complains relative to such confessions, and testified that he was beaten, struck over the head with a blackjack, his finger cut, a pistol snapped in his face, and was threatened with a mob, and that he was kicked in the groin by certain officers, slapped out of a chair, and threatened and coerced into making the first of these confessions. Two days after having made the first confession he made another confession, in the presence of some of those whom he claimed had previously mistreated him, at which second confession he does not claim any beating, kicking or coercing was resorted to, but does claim to have been told that if he did not make the second confession he would again receive the treatment that he claimed was administered to him at the scene of the first confession, and he claimed that such second confession was made under fear of a further treatment such as he had first received. It was also shown rather conclusively that no whipping, beating nor coercion was present at the time of the making of the second confession. The portion of the court's charge dealing with this testimony is as follows: "The State has introduced in evidence, before you, two statements, one consisting of two pages, and the other consisting of one page, alleged to be confessions of the defendant. In this connection I charge you that confessions of the defendant may be used in evidence against him, if you believe from the evidence beyond a reasonable doubt that the same was freely and voluntarily made, without compulsion or persuasion, and after warning...