Webb v. State, 28084

• Decision Date: 29 February 1956
• Docket Number: No. 28084,28084
• Citation: 163 Tex.Crim. 392,291 S.W.2d 331
• Court: Texas Court of Criminal Appeals
• Parties: Leslle WEBB, Appellant, v. The STATE of Texas, Appellee.

Page 331

291 S.W.2d 331

163 Tex.Crim. 392

Leslle WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 28084.

Court of Criminal Appeals of Texas.

Feb. 29, 1956.

Rehearing Denied May 30, 1956.

[163 TEXCRIM 393]

W. D. Brown, Quitman, James W. Cantwell, Mineola, Looney Lindsey, Hollie G. McClain, Gilmer, for appellant.

James L. Hartsfield, Jr., County Atty., Howard C. Douglas, Asst. County Atty., Quitman, J. O. Duncan, County Atty., Gilmer, G. L. Florence, Gilmer, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense if murder; the punishment, death.

On a prior appeal, Webb v. State, Tex.Cr.App., 278 S.W.2d 158, a death penalty conviction against this appellant was reversed because evidence was heard on a motion to quash the indictment in the absence of the accused. We also dismissed the indictment because it had been returned by a grand jury selected at an unauthorized term of court. Appellant was again indicted, venue was changed, he was again given the death penalty and is again represented in this Court by the same able and conscientious court-appointed counsel who represented him on the prior appeal.

Jim Robinson, a farmer, was found dead in his pasture near where he had been burning bursh. He had been shot [163 TEXCRIM 394] through the head with a small caliber bullet. His body had sustained other injuries which need not be recounted here. Appellant's father, testifying for the State, stated that he and appellant had gone hunting together in a wooded area approximately one-half mile from where Robinson's body was found on the day in question, that the appellant was armed with a .22 rifle, that they separated and he went home. He stated that the appellant returned home some hour and a half later, still carrying the rifle.

Fired cartridge cases found near the body, together with the appellant's rifle, were submitted to the Department of Public Safety, and Firearms Examiner Rhymer testified that in his professional opinion the cartridges had been fired from the submitted rifle.

Appellant's confession was introduced in evidence, which relates how he shot Jim Robinson, took his pocketbook, carried it some distance from the body, removed the money therefrom, threw away the pocketbook, went on home and told no one of his deed.

Following the making of the confession, the appellant lead the officers to the spot where he had thrown it away, and they recovered the pocketbook, together with papers bearing deceased's identification.

The appellant did not testify in his own behalf.

Lay witnesses testified that the appellant was insane or of subnormal intelligence. The State called witnesses who expressed the opinion that the appellant was sane.

This, we think, is a fair summary of a 550-page statement of facts.

The jury resolved this conflict in the evidence as to the appellant's sanity, and we find the evidence sufficient to support their verdict.

We shall discuss the contentions of the appellant so ably presented by brief and in oral argument.

During the cross-examination of the deceased's son, he was questioned about the report he had received from his stepmother that the deceased had not returned from the pasture, [163 TEXCRIM 395] which initiated the search that culminated in the finding of the body of the deceased. We quote the following portion of the statement of facts from appellant's brief:

'Q. (By Mr. Lindsey, For the Defense). Now, Son, you saw Mrs. Robinson--I believe you stated right before you went down there, I want to ask you to describe her condition to this jury, what was she doing? A. Well, not anything.

'Q. Was the crying? A. No, sir.

'Q. Did she seem highly nervous?

'Mr. Florence (For the State): We object to that as calling for an opinion and conclusion on the part of this witness; wholly immaterial and irrelevant.

'The Court: If counsel will state to me his purpose now, it might be possible that it is material. If you will state to me why you think it is material, I will have something to judge it on.

'Mr. McClain (For the Defense): Your Honor, it should be apparent that more people may be involved in this case.

'Mr. Duncan (For the State): We object to statement of counsel in the presence and hearing of the jury; exparte statement.

'The Court: I will let him state it. State who, so I will know.

'Mr. McClain: Mrs. Rhodie Robinson.

'The Court: It is your contention that Mrs. Rhodie Robinson was implicated in the killing?

'Mr. McClain: Yes, sir.

'The Court: You expect to offer evidence to that effect?

'Mr. Lindsey: We expect to offer evidence. It may be--I won't say how--whether it is direct, but it is our expectation to offer evidence to that effect.

'The Court: All right. Overrule the objection. Go ahead.'

[163 TEXCRIM 396] The appellant did not object until the following morning and then asked for a mistrial.

It is urged that the court commented on the weight of the evidence and prejudged the appellant's defense in the eyes of the jury by the questions and comments shown above.

If the defense had not wanted to answer the court's questions within the hearing of the jury, which under the state of the record appear to have been necessary in order for the court to properly rule upon the objection, they should have advanced to the bench and privately stated their reasons to the court. In the absence of a showing that they attempted to do so and the court refused to permit them, no reversible error is reflected by the bill. On the contrary, the court's ruling was against the State, whose objection to defense counsel being permitted to make the statement in the presence of the jury was overruled.

The appellant next contends that the confession is inadmissible as a matter of law because the sheriff showed the appellant pictures of the body of the deceased shortly before he signed the confession. We again call attention to the fact that the appellant did not testify, and there is no evidence of police brutality or long and uninterrupted questioning. The appellant, aged 29, was carried from his home county of Upshur to Austin, after he had agreed in writing to submit to the lie detector test. The tests were given, and he was returned to his home and released. Some several days later, after the officers had pursued their investigation further, a complaint was filed against the appellant, he was arrested and again carried to Austin, this time accompanied by his father, and again given the lie detector test. After D. E. Wheeler, the operator of the polygraph machine, had concluded this second test, he left the room where the test had been given, and the sheriff entered and began to talk to the appellant. It was at this time that the sheriff showed the appellant the pictures of the body of the deceased. After he talked to the sheriff, he signed a written confession. At this point we quote from the testimony of the sheriff:

'Just like I say, Hollie, I don't recall whether he had already started making his statement or had already explained to me what happened on that afternoon, whether I showed him the picture or not, but I think it was after he had told me about the killing of Mr. Jim.'

As stated, it is the appellant's contention that, since the [163 TEXCRIM 397] sheriff admitted that the pitcures made a 'mighty gruesome sight,' we should hold as a matter of law, without any testimony from the appellant, that such act on the part of the sheriff rendered the confession inadmissible.

Reliance is had upon Davis v. United States, 32 F.2d 860, by the Ninth Circuit Court of Appeals. In that case, the accused was carried to the morgue at three o'clock in the morning and there interrogated for almost an hour in the presence of the body of his deceased victim.

In the case at bar, the accused was shown the pictures for a very short time late in the afternoon in the polygraph room at the Department of Public Safety.

We cannot bring ourselves to hold that there is enough similarity in the facts of the two cases to make the Davis case here controlling. In the case at bar, the appellant's father had accompanied him to a public building where he was given the lie detector test. At the conclusion of the test, he was shown pictures of the body of the deceased, and during this interview he confessed. As shown by the sheriff's testimony quoted above (which was the only testimony on the question), the appellant failed to establish that the confession was induced by the pictures which were exhibited to him.

Appellant also relies upon the decision of this Court in Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419. In the Prince case, we had undisputed evidence of long and uninterrupted questioning, which is held to vitiate a confession by this Court and the Supreme Court of the United States. There is no such showing in the case before us.

We overrule appellant's contention in this respect.

Appellant's last contention, if we properly understand it, is that the court violated lated his State and Federal constitutional right in admitting the confession against him because it was secured following the giving of a lie detector test some distance from his home.

This Court has rather recently had before it a similar contention in Gasway v. State, 157 Tex.Cr.R. 647, 248 S.W.2d 942, certiorari denied 344 U.S. 874, 73 S.Ct. 167, 97 L.Ed. 677, Paris v. State, 157 Tex.Cr.R. 580, 249 S.W.2d 217, certiorari denied 344 U.S. 857, 73 S.Ct. 92, 97 L.Ed. 665, and in Hulen v. State, 157 Tex.Cr.R. [163 TEXCRIM 398] 507, 250 S.W.2d 211. The record in those cases and the record before us here lead us to conclude that the use of the lie detector test as a means of interrogation does not violate the accused's constitutional rights or render the written confession thereafter made involuntary.

Finding no reversible error, the judgment of the trial court is affirmed.

On Appellant's Motion for Rehearing

WOODLEY, Judge.

In view of appellant's motion for...