
    CORONA v. STATE.
    (No. 11131.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Indictment and information &wkey;>l25(29)— Count of indictment charging killing by striking with piece of bolt, and by striking with hard instrument, exact nature being unknown, held not duplicitous.
    Count of indictment for murder, charging that the accused did kill deceased “by striking tíer with a piece of bolt, and by striking- her with a hard instrument, the exact nature of which is to the grand jury unknown,” held not duplicitous.
    2. Assault and battery &wkey;>96(7) — Homicide &wkey;> 282 — Where weapon, small iron rod, was not per se deadly, intent to kill was for jury, and court should have charged on aggravated assault (Pen. Code 1925, arts. 1261, 1263).
    Where the weapon, a piece of iron about-the size of the little finger, and about a foot and a half long, was not per se deadly, whether the accused intended to kill was for the jury for consideration under Pen. Code 1925, arts. 1261, 1263, and the court should have charged on aggravated assault.
    3. Criminal law &wkey;>736 (2) — Whether confession of defendant, takein by deputy sheriff through interpreter, was voluntary, held for jury.
    Whether the confession of defendant, a Mexican, relative to his having committed the murder,' taken by the deputy sheriff through an interpreter, was voluntary, held, under evidence, for jury.
    4. Criminal law &wkey;>520(l) — To be admissible, confession must be freely made, and not induced by promises.
    To be admissible in prosecution, a confession of the accused must have been freely and voluntarily made, and not induced by promise creating hope of benefit or influences applied, leading the defendant to believe his condition would be better by making such confession.
    Commissioners’ Decision.
    Appeal from District Court, Da Salle County; J. F. Mullally, Judge.
    Carlos Corona, Sr., was convicted of murder, and he appeals.
    Reversed and remanded.
    Covey O. Thomas, of Cotulla, and H. C. Lane, of Millett, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment death.

The. count in the indictment under which appellant was convicted charges that:

“Carlos Corona, Sr., * * * did then and there unlawfully, with his malice aforethought, kill Julia de Corona by striking her with a piece of bolt,' and by striking her with a hard instrument, the exact nature of which is to the grand jury unknown.”

Appellant’s contention that the count of the indictment under which he was convicted is' duplicitous, is without merit. Branch’s Annotated Penal Code, § 2059; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330.

The court gave a charge upon murder and manslaughter. -The evidence shows that the weapon with which the homicide was committed was a piece of iron about the size of the little finger, and about a foot and a half long. The evidence does not show the weight of the iron. Appellant struck deceased a blow with, the iron, and killed her. The question of the intent to kill was a controverted issue. The omission from the charge of an instruction on aggravated assault was called to .the court’s attention by proper exception. We are constrained to hold that the omission of such instruction was error.

Article 1261, P. C., which was in effect at the time of the trial, provides:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the defendant; if the instrument be one not likely to produce death, it is not tó be presumed that death was designed, unless from the-manner in which it was used such intention evidently appears.”

Article 1263, P. C., which was also in effect at the time pf the trial, provides:

“Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of- any grade of assault and battery.”

In the case of Neal v. State, 98 Tex. Cr. R. 468, 266 S. W. 410, Judge Hawkins stated the ride as follows:

“Where the weapon used in committing the homicide is not per se a deadly weapon the intent to kill is a question for the jury, and the court should charge on assault under Articles 1147 [now 1261] and 1149 [now 1263], P. C.”

The question presented here has been considered by this court in many eases, among which are Mason v. State, 96 Tex. Cr. R. 48, 255 S. W. 986; Collins v. State (No. 10957) 299 S. W. 403, opinion delivered October 26, 1927, but not yet [officially] reported. An extended discussion of the question is not deemed necessary.

The state relied largely upon the confession of appellant. The confession was taken by a deputy sheriff. Appellant is a Mexican, and an interpreter was used in taking the confession. After testifying on direct examination as to the predicate laid for the admission of the confession, the deputy sheriff, on cross-examination, said:

“Before this instrument was signed by Carlos Corona, Sr., I informed him that his son had made a statement — that was before he signed it, before I started the statement, but not' before the verbal statement. Before this instrument was signed, I didn’t tell him he better make a statement; told him his son signed one, but didn’t even tell him to make one; told him that his son had told me all that had happened, and I thought it best that he would make a statement too, but that he didn’t have to unless he wanted to; told him it would be better for him to make this statement at that time.”

The issue of the voluntary character of the confession was not submitted to the jury. A special charge intended to submit the issue was timely presented to the court. We are of the opinion that under the facts the issue should have been submitted to the jury. In the case of Gallagher v. State (Tex. Cr. App.) 24 S. W. 288, Judge Davidson said:

“In order to render a confession admissible it must be freely made, and without compulsion or persuasion, not induced by promise creating hope of benefit or influences applied, leading the defendant to believe his condition would be better by making such confession.”

See Hammer v. State, 102 Tex. Cr. R. 224, 277 S. W. 392.

We pretermit a discussion of other points raised in the record, for the reason that they are not likely to arise upon another trial.

For the errors discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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