
    WHITFIELD v. STATE
    (No. 9968.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.
    Rehearing Denied May 19, 1926.
    On Application for Second Motion for Rehearing, June 6, 1926.)
    1. Criminal law &wkey;l 120(8)— Bill of exceptions to admission of testimony of things seen in private residence without search warrant held not to show error, where failing to negative idea that witness may have been properly within house.
    Bill of exceptions complaining of admission of testimony as to clothing and pistol seen by witness without search warrant in private residence of accused fails to show error, where not negativing idea that witness was properly in house or had consent of accused to be there at time of discovery.
    2. Criminal law <s&wkey;l 120(8) — Bill of exceptions failing to show that accused knew or thought he was under arrest at time of making state- \ ments held not to show error in their admission into evidence.
    In murder prosecution, admission of testimony of statements made by accused at undertaking parlors where body of 'deceased was located held not shown erroneous, where bill of exceptions failed to show that accused knew or thought he was under arrest at time of making them.
    On Motion for Rehearing.
    3. Criminal law &wkey;>736(2).
    Admissibility of written confession, on its face showing that it was made in accord with statute, is for court upon proof of execution by accused.
    4. Criminal law <&wkey;>736(2).
    Where confession is objected to as being involuntary and proof thereon is conflicting, issues of fact so raised are properly submitted to jury.
    5. Criminal law <S=I 111 (3), 1129(1).
    Criminal practice does not call for “assignments of error,” and appellate court will look to bills of exception and not such assignments.
    6. Criminal law <&wkey;1122(1) — Appellate court cannot consider objections to refusal of charge, where neither bill of exceptions nor document containing charge showed that it was presented in proper time.
    Where neither bill of exceptions nor document containing refused charge shows when it was presented to trial court, or that it was presented at proper time, appellate court cannot consider objection to refusal.
    
      7. Criminal lav/ <§=? 1090(8)— Appellate court will not consider proposition that confession was not admissible because accused was not allowed to see attorney, in absence of any bill of exceptions to any action or proceeding of court.
    Proposition that confession should have been held inadmissible because accused was not allowed to see attorney before making same will not be reviewed by appellate court, in absence of any bill of exceptions to any action of court or proceedings in case.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Robert Whitfield was convicted of murder, and he appeals.
    Affirmed.
    Edgar Scurry, O. E. Nelson, and Henry D. Akin, all of Wichita Falls, for appellant.
    Ben P. Allred, Dist. Atty., and H. D. Bishop, Asst. Dist. Atty., both of Wichita Falls, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is murder, and the punishment is 25 years in the penitentiary.

The first complaint raised by appellant in his brief is at the court’s action in permitting the state to introduce in evidence four alleged voluntary confessions made by the appellant. The introduction of these confessions was contested on the ground that they were induced by duress and coercion on the part of the officers. The voluntary character of the confessions are stated in the confessions themselves, and the-officers taking the same each testified that they were freely and voluntarily made. On the contrary, appellant introduced testimony showing that his contention that they were induced by fear, threats, and coercion was correct. The court in his charge to the jury submitted the question of the voluntary character of these confessions to the jury in a correct charge. The court’s action in the matter is correct. Where an issue is made that a written confession containing a proper warning was not voluntarily made, the issue should be submitted to the jury. Jordan v. State, 51 Tex. Cr. R. 146, 101 S. W. 247; Knight v. State, 55 Tex. Cr. R. 251, 116 S. W. 56; Berry v. State, 58 Tex. Cr. R. 291, 125 S. W. 581; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130.

The conviction was for the killing of the appellant’s wife, her dead body being found near the residence where they were living. By various bills of exceptions appellant complains at the court’s action in permitting the officers to testify as to clothing, a pistol, and cartridges found in the appellant’s home. As illustrative of the insufficiency of these bills to show any error, we quote the jfollowing from bill No. 1:

“Mr. Jimmy Allen was permitted to testify, over the objection of the defendant, that a man had appeared at the police station early Sunday morning; that he asked about any one seeing a tall, dark, brown skinned woman; that he was wearing a dark shirt and a dark pair of trousers; that he next saw those trousers hanging on a nail in defendant’s room in Pine street; that he had no search warrant at tlie time he went into defendant’s home; that he found in the watch pocket of the defendant’s trousers a 32-caliber pistol cartridge; that they were the same trousers Bob Whitfield had on at the time he came to the police station — which testimony was then and there objected to by the defendant at the time it was offered upon the following- grounds: That anything he might have seen in said house, or discovered therein, or that he might have heard therein was inadmissible in _ evidence for the reason that the witness did not have a search warrant.”

The bill further shows that the objection was overruled and the testimony admitted. We think it clear that this bill fails to show any error. It is unnecessary in this case to discuss the recent search and seizure law passed by the Thirty-Ninth Legislature. Under no construction of that law can it he contended that in all cases evidence of things seed at a private residence is inadmissible simply because the witness seeing them had no search warrant. This bill of exceptions utterly fails to negative the idea that the witness Allen was properly in' the house, and fails to even suggest that he did not have the consent of the appellant to be in said house at the time the facts above disclosed were discovered by him. Ripped v. State, 86 Tex. Cr. R. 539, 219 S. W. 463; Moore v. State, 87 Tex. Cr. R. 569, 226 S. W. 415; Tiner v. State, 92 Cr. R. 306, 243 S. W. 1092; Banks v. Commonwealth, 190 Ky. 330, 227 S. W. 457.

Under the record in this case we think no error was shown by the bills of exception in the court’s action in permitting the state to prove the things found by the officers at and near the home of Whitfield. They were cogent circumstances that tended to shed light on the killing of the deceased and the defendant’s connection therewith.

Neither do we think the court was in error in permitting the witness Allen to testify to statements made by the appellant at the undertaking parlors where the body- of the deceased was located. The bill of exceptions we think shows on its face that the appellant was not under arrest at the time these statements were made. It certainly fails to show that appellant knew or thought he was under arrest at the time.

Binding no error in the record, and believing that the evidence is amply sufficient to support the verdict, the judgment is in all things affirmed.

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.

On Motion for Rehearing.

LATTIMORB, J.

As we understand appellant’s motion for rehearing, he contends that no evidence was heard in the trial court in determining whether certain confessions objected to by the defense were voluntary or not. Bill of exceptions No. 9, which brings before us this matter, sets out at length the testimony, both for the state and the defense, adduced on the issue of the voluntary character of said confessions. The rule is that a written confession is admissible which shows on its face that it was made in accordance with our statute, provided the execution' thereof by the defendant is proven. Its admissibility when thus offered is for «jetermi-nation by the court. Thompson v. State, 90 Tex. Cr. R. 15, 234 S. W. 401. If the truth of those matters upon which its admissibility rests be put in issue by proof attacking same, issues of fact are thereby raised, and, under our practice, may be submitted to the jury in the charge. This seems to have been done in the instant case. Since the determination of fact issues is for the jury, it was right for them to hear the evidence pro and con affecting the voluntary character of the confesr sions. In Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177, cited by appellant, we held in effect that when proof .offered as a predicate for the introduction of a confession was conflicting as to the voluntary character of same, it is the practice to submit the issue to the jury, but we further held that the proof offered in that case showed that the confession was not voluntary, .and that the trial court should not have admitted the confession in evidence. We are not of opinion that the case before us is analogous to the Williams Case, supra, in such regard. The testi-mopy in this case is set out in said bill wherein appears the statements of various parties present when the confessions were made who assert positively that same were wholly without any improper influence.

Appellant urges that we did not consider what he calls his éixth assignment of error. It would seem that this court is unable to make it plain that the practice before us does not call for “assignments of error”; that same are to us but confusing. This case illustrates said proposition. In his brief we are referred to “Appellant’s sixth assignment of error (bill of exceptions No. 10, fifth and eighth grounds of motion for new trial).” Referring to bill of exceptions No. 10, as' same appears in the record, it presents complaint of the refusal of a special charge to the effect that all exculpatory statements of the appellant herein appearing in his written confessions in evidence must be taken as true unless proven untrue. Referring again to appellant’s brief, we note that under the sixth “assignment of error” above referred to he discusses an entirely different matter from that raised by bill of exceptions No. 10 in the record. This serves to show why we have repeatedly stated that we look to bills of exception and not to assignments of error. However, the matters discussed in appellant’s said sixth assignment will be noticed. In his motion for rehearing appellant complains of our failure 'to consider the matter thus brought forward. The complaint appears to be of the refusal of the trial court to give a special instruction limiting the testimony of witnesses Spence, Humphrey et al. concerning the conduct and statements of appellant while under arrest. Just what acts and statements of the appellant are referred to in this refused instruction we are unable to determine. The hill gives us no information on this point. The special charge is most general, and singles out and refers to no testimony of any of said witnesses. Nothing in the document containing the refused charge shows when same was presented to the trial court, nor is there' any bill of exceptions showing whether it was presented at the proper time. We are not at liberty to overlook these material defects in bill'of exceptions No. 11 which complains of this matter, or to consider matters not properly before us.

In his discussion of this “assignment of error” in the motion for rehearing, appellant also urges that the confessions should have been held inadmissible on the ground that he was not allowed to see an attorney at the time of or before same were made. We find in the record no bill of exceptions to any action of the court or proceedings in this case, based on the proposition that appellant was not allowed to see an attorney, and for that reason are unable to apply either the argument or the citation of authorities in the motion relating to this point.

Finding no error in the record, and believing that the ease was properly decided on original presentation, the motion for rehearing will be overruled.

On Application for Leave to File Second Motion for Rehearing.

In his application for leave to file second motion for rehearing, appellant presents no ground therefor which has not heretofore been considered by this court and passed upon, in either its original opinion or opinion on motion for rehearing. The matters presented are merely those that have heretofore been passed on by the court.

The application will be denied. 
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