Tidwell v. State

• Decision Date: 26 October 1898
• Citation: 47 S.W. 466
• Parties: TIDWELL v. STATE.
• Court: Texas Court of Criminal Appeals

47 S.W. 466

TIDWELL v. STATE.

Court of Criminal Appeals of Texas.

October 26, 1898.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Tebe Tidwell was convicted of theft, and he appeals. Affirmed.

O. S. Lattimore and W. R. Parker, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of a mule, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant insists that the court committed an error in admitting the testimony of D. P. Clark as to the defendant's alleged confession, on the ground that the same was not voluntary. We understand his contention to be, not that appellant was not properly warned, but that, after he was so warned, his confession or statement was elicited by interrogatories propounded to him by Clark. Because a confession may be elicited by questions is not alone sufficient to render it inadmissible. The questions must be of a character and propounded under circumstances in a manner calculated either to coerce or persuade. There is no evidence here of such facts. The rule with reference to dying declarations does not apply to a matter of this sort. There the statute requires that the questions be not calculated to induce the desired answer. Here the only criterion is that the confession must appear to be free and voluntary, and not made under coercion or persuasion. There is no question here that the confessions were not voluntarily made, and the court did not err in failing to instruct the jury on this subject as requested by appellant.

Appellant further urges that the corpus delicti has not been proven; and in that connection he insists that this must be proven independent of appellant's confessions. In answer to the last proposition, we would state the rule insisted on by appellant is not a sound one, but the confession can be considered along with the other testimony in order to establish the corpus delicti. See Anderson v. State, 34 Tex. Cr. R. 546, 31 S. W. 673; Kugadt v. State (Tex. Cr. App.) 44 S. W. 989; Rice, Cr. Ev. p. 466, § 294. We have examined the testimony carefully with reference to the corpus delicti. The state's case shows that about the 6th of December the mule in question was in the pasture of one Harrison, left there with his mate by the prosecutor. This pasture was some four or five miles from Ft. Worth. The mule was missed by the owner on the 6th of December, its mate being still in the pasture. Search was made for it for one or two days without finding it. About the 10th of December the mule was shown to be in Gainesville, in the possession of a party there. It is said that the pasture fence was down in several places, and that the mule might have strayed off. There is no testimony, however, tending to show that its range was in the direction of Gainesville, and none tending to suggest any reason why it should have left its mate, and gone a distance of about 40 miles. At the least, this testimony tends to show that said mule was stolen. Now, if, in connection with this, we take the confession of appellant, the evidence becomes very strong to that effect. Indeed, his confession explains in a most reasonable and plausible manner the absence of the mule from the Harrison pasture after the 6th of December, and its presence in Gainesville on the 9th or 10th of December; especially when we take into view the fact that appellant was seen in proximity to the Harrison pasture on the 7th of December, and that he was found in Gainesville on the 10th. We would, moreover, observe, in connection with this matter, that the corpus...