
    SIMMONS v. STATE.
    (No. 10329.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Denied June 15, 1927.
    1. Criminal law <&wkey;l09l(11) — Question and answer bills of exception ordinarily cannot be considered.
    Ordinarily, bills of exception in question and answer form cannot be considered.
    2. Criminal law <&wkey;l09l(ll) — Rule preventing consideration of bills of exception in question and answer form is not strictly adhered to, where death penalty was imposed.
    Where death penalty has been imposed, appellate court is not inclined to strict adherence to rule preventing consideration of bills of exception in question and answer form.
    3. Criminal law <®=53l(3) — Evidence held to support conclusion that confession was voluntary.
    Testimony of number of state’s witnesses denying defendant’s claim of coercion, threats, etc., surrounding or preceding taking of confession, which complied with statutory requirements on its face, held to support conclusion that confession was voluntary.
    
      4. Criminal law <&wkey;404(3)— Pistol, found where defendant’s accomplice worked, and testimony as to finding it, held admissible in murder trial.
    In murder trial, admission of testimony as to finding pistol of caliber of bullet found in deceased's body in pumphouse where defend? ant’s accomplice, who defendant said in confession had used such a pistol at time of homicide, worked, and introduction thereof in evidence, ¡held not error.
    5. Homicide <&wkey;>309 (3) — Confession that defendant and accomplice were robbing deceased when shot by accomplice on resisting did not raise issue of manslaughter.
    Confession that defendant and another were ' robbing deceased, who attfempted resistance and was shot by such other, held not to raise issue of manslaughter.
    é. Homicide <&wkey;30(i) — Participant in robbery, in which accpmplice kills party robbed, is guilty of murder.
    Killing of party being robbed in such fashion as to make killer guilty of murder is act ot both himself and-his accomplice in robbery, and latter is also guilty of murder.
    7. Homicide <§=234(10) — Confession is sufficient to show guilty connection with homicide, otherwise shown to havet resulted from criminal agency.
    ' Where proof from other sources than defendant’s confession establishes death as resulting- from' criminal agency of another - than deceased, confession would be sufficient to show defendant’s guilty connection with homicide.
    8. Criminal law <@=>781 (5)— Jury held properly instructed not to consider confession, unless made voluntarily after warning that no statement need be made and that it might be used in evidence against accused.
    In submitting question whether confession was freely made, court properly told jury not to consider confession for any purpose, unless they believed beyond reasonable doubt that it was made voluntarily after warning that accused would not have to-make statement and that it might be used in evidence against him.
    On Motion for Rehearing.
    9. Criminal law <&wkey;522(3> — Confession on day after officers abused, cursed, assaulted, and threatened defendant must be excluded, though no coercion was used when, actually given.
    If officers abused, cursed, assaulted, and threatened defendant on night before confession and told him they would kill him if he did not confess, confession must be excluded as involuntary, though no coercion was used when it was actually given.
    10. Criminal law <§=736 (2) — Whether officers abused, cursed, assaulted, and threatened defendant on night before confession held for jury.
    Whether officers abused, cursed, assaulted, and threatened defendant on night before confession and told him they would kill him if he f did not confess held for jury on conflicting testimony.
    11. Criminal law <&wkey;l 1665/2(5) — Complaint of officers’ failure to check each other’s work in refilling jury wheel held without merit, in absence of averment of any mistake (Rev. St. 1925, arts. 2094, 2095).
    Contention that officers, charged with duty of refilling jury wheel, under Rev. St. 1925, arts. 2094, 2095, did not check each other’s work to avoid possibility of mistakes, held without merit, in absence of averment that any mistake occurred.
    12. Jury <&wkey;65 — Officers need not check each other’s work to avoid mistakes in filling jury . wheel (Rev. St. 1925, arts. 2094, 2095).
    Officers charged with duty of filling jury wheel, under Rev. St. 1925, arts. 2094, 2095, need not check each other’s work to avoid possibility of mistakes; statute not particularizing method to be followed.
    13. Criminal law 43=784(3) — Charge on circumstantial evidence held not required, in view of defendant’s confession and testimony as to pointing out place of killing.
    In murder trial, defendant’s confession that he and actual killer were acting together in robbery of deceased at time of killing, together with testimony that defendant pointed out to officers place where deceased was killed, relieved court of necessity of charging on circumstantial evidence.
    Appeal from District Court, Bexar County; W. W. McCrory, Judge.
    Tillman Simmons was convicted of murder, and he appeals.
    Affirmed.
    Henry Dee Taylor and O. B. Black, both of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Carl Wright Johnson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment fixed at death.

Frank Usry was shot and killed on the night of August 20, 1924. The state relied chiefly on the confession made by appellant to establish that appellant and one Briscoe killed Usry in the perpetration of the crime of robbery. We discuss the various questions raised by appellant in the order in which the bills of exception appear in the transcript.

Those matters appearing in bills Nos. 1, 2, and 3 all relate to and are based on the legality of the filling of the jury wheel in Bexar county after this court’s decision in Atwood v. State, 96 Tex. Cr. R. 249, 257 S. W. 563. The exact questions raised were before us and were discussed and decided adversely to the contention now made in the case of Matthew Briscoe v. State (No. 10345) 292 S. W. 893, opinion handed down February 16, 1927.

Bills of exception Nos. 4, 5, and 6 are in question and answer form, wliicli is contrary to tlie statutory mandate and would ordinarily prevent their consideration. However, in cases where the extreme penalty of the law has been inflicted we are not inclined to strict adherence to this rule. We have examined each of said bills and perceive no error in the matters complained of. Nor do we find anything in any of them deemed worthy of discussion.

Appellant took issue with the state as to the voluntary character of the confession claimed to have been made by him. The learned trial judge allowed evidence on this point and submitted the issue to the jury. This was proper. Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177. We cannot say that the evidence does not support the conclusion that such confession was voluntary. On its face the written document complied with the statutory requirements, and a number of witnesses for the state testified denying appellant’s claim that there was any coercion, threats, or other matters surrounding or preceding the taking of said confession which would prevent its being freely and voluntarily made.

The testimony as to the finding, in a pumphouse where Matthew Briscoe worked, of a 82-20 pistol, and the introduction of said pistol in evidence, was not error. In the confession of appellant he said Briscoe had and used such a pistol on the occasion of the homicide. A 32-20 bullet was found in the body of deceased.

This is not a case of circumstantial evidence. The confession of appellant that he and Briscoe were acting together in the robbery of Usry when Briscoe shot the latter takes the case out of such category.

We find nothing in the record remotely tending to raise the issue of manslaughter. If the facts stated in the confession be true, appellant and Briscoe were robbing deceased, who attempted resistance while Briscoe was going through his pockets, and Briscoe shot him. This does not suggest any manslaughter passion. Mercersmith v. State, 8 Tex. App. 211; Isaacs v. State, 36 Tex. Cr. R. 505, 38 S. W. 40. When parties go out for the purpose of robbing another and while so engaged one of them kills the party being robbed, in such fashion as to make him guilty of murder, it is the act of both, and the other is also guilty of murder. Kirby v. State, 23 Tex. App. 13, 5 S. W. 165; Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901.

Appellant complains that the charge did not tell the jury that the confession of the accused would not be sufficient to warrant conviction unless there were other facts which; independent of such confession, showed his connection with the crime. There being no question but that the proof fom sources other than appellant’s confession established the death of Usry as resulting from the criminal agency of some person other than deceased, the confession would be sufficient to show appellant’s guilty connection with the homicide. Lawson v. State, 96 Tex. Cr. R. 322, 257 S. W. 559; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902; Gandy v. State, 99 Tex. Cr. R. 643, 271 S. W. 97; Aven v. State, 95 Tex. Cr. R. 155, 253 S. W. 521.

The trial court properly told the Jury, in submitting to them the question as to whether the confession was freely made, that unless they believed beyond a reasonable doubt that such confession was made voluntarily, and that the accused was warned that he did not have to make any statement at all, and that if he did make same it might be used in evidence against him on his trial, the jury could not consider such confession for any purpose.

We have tried to give this case the same degree of care and caution which we hope characterizes our investigation of all questions appearing in death penalty cases, as well as others, but, finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS,!.

Appellant again urges that error was committed by the trial court in admitting in evidence appellant’s confession, objection being that it was not voluntary but was secured by improper conduct and threats on the part of officers. Appellant himself makes no claim that any coercion was used at the time the confession was actually given, but asserts that certain officers had abused, cursed, assaulted, and threatened him on the night before and had told him if he did not make the confession they would kill him. If his testimony should be taken as true it would have demanded the exclusion of the confession and showed most brutal conduct on the part of the officers. However, they testified and categorically denied every act or word attributed to them by appellant upon which duress, abuse or threats could be predicated. This raised an issue of fact which was properly submitted to the jury. It would be going beyond our province to hold that the officers’ testimony should be discarded and that of appellant and his witnesses accepted. This was a matter to be determined by the jury under the instructions given.

Appellant also renews complaint at the manner of refilling the jury wheel. The particular point urged is that the various officers charged with that duty while working in the same room did not check each other’s work to avoid the possibility of mistakes. It is not averred that any mistake occurred. Furthermore, the statute (articles 2094 and 2095, R. O. S.), does not particularize the method to be followed by the officers in performing the duty of filling the jury wheel further than to direct that they “shall meet at the courthouse * * * and select from the list of qualified jurors * * * the jurors for service * * * for the ensuing year,” by writing “the names of all men who are known to be qualified jurors * * * on separate cards of uniform size and color,” which shall be deposited in the jury wheel. We fail to find in the record anything indicating irregularity in their work of which appellant had just ground of complaint.

Appellant’s confession, in connection with, other testimony- to- the effect that he pointed out to the officers the place where he said deceased was killed, relieved the court of the necessity of charging on circumstantial evidence.

The motion for rehearing is overruled. 
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