
    PHILLIPS v. STATE.
    (No. 9540.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied Dec. 2, 1925.)
    1. Criminal law <®=o,518(3) — Confession not rejected because warning used word “can” instead of “may.”
    Written confession, reciting that accused had been warned that his statement “can be used against him,” held admissible as against objection that, under Code Cr. Proc. 1911, § 810, he must be warned that it “may be used against him.”
    2. Criminal law <@=>530 — Confession need not state name of offense with which defendant oharged, where facts identifying transaction fully set out.
    Where a written confession sets out facts identifying transaction, it need not state in terms name of offense with which defendant was charged at time of his arrest.
    3. Criminal law <@=>519(9) — Confession made . after proper warning not inadmissible., because made in response to questions asked.
    
      ( A confession made by defendant after a proper warning is not inadmissible, simply because it was made in response to questions propounded by district attorney who took confession.
    4. Criminal law <@=>520(2)— Confession held properly admitted, notwithstanding statement made to defendant some time before confession made.
    Where it is clearly shown that no coercion or hope of reward or inducement was offered to defendant at time confession was made, and court properly submitted voluntary character of confession to jury, confession was properly introduced, though, some time before confession defendant had been told that it might be beneficial to him to tell w|iat he knew.
    5. Criminal law <@=>538(3) — Defendant’s confession sufficient to connect him with offense, where fact that crime committed proven aliunde.
    Though the corpus delicti of a crime cannot be established alone by uncorroborated confession of party charged therewith, if fact that a crime was committed is proved aliunde, confession is clearly sufficient to connect him with offense.
    (On Motion for Rehearing.)
    6. Criminal law <@=>463 — Nonexpert testimony that wound on deceased’s head appeared to have been made hy blow from blunt instrument properly admitted.
    Nonexpert Witness was properly permitted to testify that wound on head of deceased appeared to have been made by blow from blunt instrument, especially in view of defendant’s admission that blow was struck with piece of iron.
    7. Criminal law <@=>537 — Testimony that dimes wrapped in handkerchief found on defendant’s person at time of arrest held properly admitted.
    Where defendant, prosecuted for murder, stated in his confession that he killed deceased for purpose of obtaining money from him and took contents of dime bank belonging to deceased and wrapped it up in handkerchief, testimony that at time of defendant’s arrest there were found on his person 26 dimes wrapped in handkerchief held properly admitted.
    8. Criminal law <@=>781 (4) — Charges held to have properly submitted1' law as to confessions.
    Court's charges held to have properly submitted to jury issue touching voluntary nature of defendant’s confession, and correctly informed .jury as to limitations which law places on right to convict defendant on his confession.-
    9. Criminal law <@=>781 (5) — Charge requiring jury to believe that entire confession was statement of defendant held sufficient.
    Court’s charge requiring jury, as predicate for consideration of defendant’s confession, to believe that whole of it was statement of defendant, was sufficient without singling out any part of confession, especially in absence of more specific request for submission of issue relating to particular statements.
    Commissioners’ Decision.
    Appeal from District Court, Fort Bend County; M. S. Munson, Judge.
    Sam Phillips was convicted of murder, and lie appeals.
    Affirmed.
    Peareson & Peareson, of Richmond, for appellant.
    Sam D. Stinson; State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERR'SJ, J.

The appellant was convicted in the district court of Fort Bend county for the offense of murder, and his punishment assessed at death.

The most serious complaint made by appellant, who was very abjy represented in this court, as.well as in the trial court, by attorneys appointed by the trial court, is that the confession alleged to have been made by the appellant to the district attorney was not admissible; the assault made on such confession being in effect that the same does not contain the statutory warning. The part of the confession attacked as being a warning insufficient to comply with the terms of section 810 of the C. C. P. is as follows:

“I, Sam Phillips, after having been ' duly warned by R. A. Bassett, the person to whom this statement is made, that I do not have to make any statement at all; that any statement I make must be freely and voluntarily made; and that any statement I make can be used in evidence against me in the trial 'of any cause growing out of the facts concerning which this statement is made, do hereby make the following free and voluntary statement.”

Appellant contends that the confession should not have been admitted because the warning in the confession is not in the language required by the statute, and that, among other words, it used the word “can” instead of the word “may” and does not use the word “offense” We cannot do otherwise than hold that the distinction made in the case between the use of the word “can” and the use of the word “may” is one without a difference. Robertson v. State, 54 Tex. Cr. R. 21, 111 S. W. 742. It is recognized by the profession generally that the late Judge Ramsey was one of the most careful as well as one of the most learned judges that ever graced any court, and yet in the Robertson Case, in describing the requisites of the necessary warning to be given under article 810 of the C. C. P., that learned judge used a form of the word “can” rather than a form of the word “may.”. We do not regard the question as serious and discuss it only because the matter is presented in a case carrying with it the extreme penalty of the law.

It is again contended that the confession should not have been introduced because it ■ does not in any way identify the probable prosecution with the taking of the confession, and does not in any way advise the defendant as to what offense he might be prosecuted for. This contention cannot be sustained because the confession sets out the facts fully identifying the transaction with the one for which appellant was tried, and, where a written confession sets out the facts identifying the transaction, it need not state in terms the name of the offense with which the defendant was charged at the time of his arrest. Knuckles v. State, 55 Tex. Cr. R. 6, 114 S. W. 825; Johnson v. State, 67 Tex. Cr. R. 95, 149 S. W. 190.

Appellant also contends that the .confession was not admissible because it was made in response to questions propounded by the district attorney who took' the confession. We are also unable to agree with appellant’s contention in this respect. It seems to be the established rule in Texas that, after a proper warning, a statement made by a defendant is not inadmissible simply because it was made in response to questions asked. Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235; Bailey v. State, 26 Tex. App. 715, 9 S. W. 270; Tidwell v. State, 40 Tex. Cr. R. 40, 47 S. W. 466, 48 S. W. 184; Carmichael v. State (Tex. Cr. App.) 54 S. W. 904.

An attack is also made on the confession because it appears from the testimony of one of the witnesses that, prior to the time the confession was made, the witness had told the defendant, as well as other suspected parties, that it' might be beneficial to them to tell what they knew about the killing. The record discloses that this statement was made to the appellant quite a while before the confession was made, and the testimony from the district attorney is clear to the effect that no coercion of any character and no hope of reward or inducement of any kind was offered to him at the time the confession was made. In addition to this, the record manifests the Tact that the court properly submitted the voluntary character of the confession to the jury and instructed them correctly an'd properly that they should not consider it, unless they found it was voluntarily and freely made. Under these conditions, we cannot do otherwise than hold that appellant’s complaint at the introduction of the confession is without merit.

We have carefully considered appellant’s objections to the court’s charge submitting the voluntary character of the confession to the jury, and conclude that they are without merit. It occurs to us that the court’s charge on this question protected every right that the appellant had in the matter.

The facts show beyond dispute that the deceased met his death at 'the hands of the appellant; in fact this is admitted by the appellant in his testimony before the jury. It seems to be well settled in tbis state that the corpus delicti of a crime cannot be established alone by the uncorroborated confession of the party charged therewith, but, if the fact that a crime is committed is proved aliunde, the confession of the party is clearly sufficient to connect him with the offense. Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112. Under this rule we have no doubt but that the facts disclosed by this record are unquestionably sufficient to show the appellant’s guilt.

The extreme penalty, of the law has been assessed in this case and we have given the statement of facts a very careful and painstaking perusal, but we find nothing therein sufficient to suggest that, so long as the death penalty is a part of the law of this state, it should not have been assessed in this case.

Finding no error in the record, it is our opinion that the judgment should be 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.

MORROW, P. J.

Appellant and deceased were negro convicts. Both were trusties. The body of the deceased was found at a certain point near a concrete bridge. The surroundings indicated a scuffle or fight. Upon the head of the deceased were found several wounds, one of which had apparently been inflicted with a blunt instrument, crushing the .skull. Near the body there was found a flat piece of iron about 2yz feet long. This iron was introduced in evidence before the jury. From the confession of the appellant, we take the following quotation: ,

“My name is Sam Phillips. I am a convict now on the Imperial State Farm, and am putting up a term of 20 years for murder. I killed Jessie Davis last Wednesday morning before daylight. I killed him in the public road opposite Imperial Farm about 5 or 6 steps from the second gate. I had told him to go down there; that we would meet two women. I just told him that, but had made no arrangements to meet any women. The reason I killed him was to gét some money he had beat me out of. We got to scuffling and I killed him with this piece of iron. I had pickedl this piece of iron up at or near the blacksmith shop and had carried it out to where I killed him with me. After I killed him, I threw the iron in a sorghum patch. I then got his money out of his pocket. His money was in a little bank and was in dimes. I broke the bank open and took the money out and wrapped it in a handkerchief and threw the bank away in a corn patch. There was $3 and something and all in dimes. After I had killed Jessie and'gotten the money, I went back tó tire camp. I was a trusty at that time, and Jessie was one, too. I made this arrangement with Jessie to go out on the road to meet the women on Sunday
“[Signed] Sam Phillips.
“Witnesses:
“Jesse F. Ward.
“W. W. Ward.”

Appellant testified upon the trial, that the meeting in which Davis lost his life was arranged by him; he having told the appellant that he was going there to meet some women. From his testimony we quote:

“I met Jesse Davis down there. He was there when I got there, but I never did see any women. I said something to Jesse about money. He owed me $4 from shooting dice. We were shooting dice, and I won, and I asked him' for $4. I had loan him $4 just the week before then. I asked him just insisting on, and he had the money, too, and he wouldn’t give it to me and begun cussing and run his hand in his pocket for his knife, and I hit him with my fist. We fought a pretty good while and I hit him with something. I stumbled over a piece of iron, and I reached dlown and got it and hit him with it. We were then still fighting. I first knocked his knife out of his hand and we kept on fighting. I only (hit) him once with the iron. I did not go there for the purpose of killing Jesse Davis, but went there to meet some women. I did not take that piece of iron there with me, but found it on the ground there. I first hit him with my fist. I kept rushing him. It was pretty dark, and I stumbled on that iron, and I thought it was a stick. I thought it was a club. I did not get that piece of iron from the blacksmith shop and! did not take it with me. When I went down there that morning, I had no idea of killing him. I had .to hit him with the iron. He was rushing me with that knife. He had a knife and I never had nothing.”

When the appellant was first taxed with the offense, he threw the knife into a toilet. It was recovered, introduced upon the trial, and identified as belonging to the deceased. There was also found in the possession of the appellant a number of silver dimes. There were circumstances aside from the declarations of the appellant tending to identify these as coming from the deceased. In his testimony, appellant said:

“Before I made this statement, Blue promised to help me and promised to do something for me, if I would make a statement about it. Mr. Swift also made the same statement. They said that if I would say I done it they would make it light on me;, they said they would help me out, and that is the reason I made the statement.”

Appellant further said:

“Mr. Swift told me: ‘Go ahead and tell the truth about this thing, and me and Capt. Blue will make it light on you.’ ”

In his testimony, appellant admitted that he got the knife from the deceased, but denied that he threw it in the toilet. The written confession was made some 3 or 4 days after the death of the deceased. Capt. Blue, the assistant manager of the Imperial State Farm, testified that, at the time the appellant was questioned, the witnesses Swift and Flanagan were present. Flanagan testified that he did not tell the appellant that by confessing it would go easier with him. The witness said he told the appellant, if he did it, he ought to tell it; that the appellant at the time was trying to implicate another person with him. The witness denied any promise, to help the appellant, and stated that neither Blue nor Swift did so in the presence of the witness. Swift gave like testimony; so did Capt. Blue.

There was no error in permitting a nonexpert to testify that the wound on the head of the deceased appeared to have been' made by a blow from a blunt instrument. Especially is this true in view of the appellant’s admission that the blow was struck with a piece of iron. Nor was there error in receiving testimony that -upon the person of the appellant at the time of his arrest there were found 26 dimes wrapped in a handkerchief stuck under his underclothes.

The remarks made in the original opinion sufficiently dispose of the criticism of the warning contained in the confession. The position is taken, however, on this hearing that the issue touching the voluntary nature of the confession was not properly submitted to the jury. The subject is treated in subdivision 5 of the court’s charge. In the first paragraph, the jury is told that the statement may he used if it was freely and voluntarily made without compulsion, promise, or .persuasion. In the next, the jury is told that if the confession was not shown to have been made freely or voluntarily, or if they had a reasonable doubt with reference thereto, or if they believed it was induced by promise, or other improper influence, or if upon that subject there was a reasonable doubt, the confession should be disregarded. In the next paragraph the jury is instructed that the appellant could not be convicted upon the confession alone unless there was other testimony corroborating it. The last paragraph we quote as follows:

“If you believe beyond a reasonable doubt that said confession was freely and voluntarily made and was not induced by promises or other improper influences and that said confession is true, then such confession is to be taken into consideration by the jury as evidence in connection with all the other facts and circumstances of the case, and you will so consider said confession in this case, unless you disregard it under the charge hereinbefore given you.”

It occurs to us, taking into account the evidence, that the subdivision of the charge affords no just ground for serious criticism. The paragraph in which it is said that he cannot be convicted upon the confession alone, etc., might well have been amended by omitting the word “alone.” However, in the present case, it is conclusively shown that the conviction does not rest upon the confession alone. From the appellant’s testimony it was shown that he killed the deceased. The possession of the property of the deceased, his secreting the offen’se, his contradictory statement with reference to the possession of the property, and his effort to dispose of the knife of the deceased, are' circumstances corroborative of his confession. The subdivision of the charge in question, on the whole, we think, does full justice to the appellant in informing the jury as to the limitations which the law places upon the right to convict the appellant upon his confession. In the recent case of Aven v. State, 95 Tex. Cr. R. 159, 253 S. W. 521, we had occasion to review the authorities upon the subject, and from the opinion in that case we take the following quotation:

“To sustain a conviction for murder, the proof must show the death of the deceased by violence and that the aecusedi was the guilty agent. This cannot be shown by'thq confession alone, but the law does not require that it come wholly from evidence independent of the confession. The case of Attaway v. State, relied on by the appellant, asserts a different rule, but it has been modified in that respect. Sowles v. State [52 Tex. Cr. R. 17] 105 S. W. 178; White v. State, 40 Tex. Cr. R. 366 [50 S. W. 705]. In Sowles’ Case, supra, Judge Davidson, speaking for the court, said:
“ ‘The rule now, as laid down by this court in the case of Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989, is that a confession may be used in making out the corpus delicti. The rule as laidl down in the case of Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112, is that, where the corpus delicti has been shown, a confession may be used to connect the defendant with the offense or with the corpus delicti. The Attaway Case; however, was qualified in the case of Kugadt and subsequent cases.’ ”

Appellant’s counsel stresses that part of the appellant’s testimony in which he testified that, in writing the confession, the county attorney did not correctly record the words used. The correctness of the confession was vouched for by the county attorney who wrote it, by the subscribing witnesses, and by others who were present. Appellant, in his testimony, • claimed that in some particulars he was misunderstood. In this connection, he claimed that he did not state that he told the deceased that arrangements had been made to meet two women, but he did say that the deceased had told him that such arrangements had been made. All that is found upon the subject is in the exceptions to the court’s charge' to the point that the question as to who made the appointment to meet the two women was a disputed one and that the charge did not permit the jury to find that that part of the confession was freely and voluntarily made, but required them to accept or reject .all of it. The criticism does not seem sound; nor is it conceived that it would have been practicable for the court to have singled out any part of the confession and directed the attention of the jury thereto. The charge as given required the jury, as a predicate for the consideration of the confession, to believe that the whole of it was a statement of the appellant. This certainly implied that, if part of it was not his statement, the whole should be rejected. In the absence of a more specific request for the submission of this issue, prepared by the appellant, we fail to perceive in what manner the court could have better protected the rights of the accused. If the appellant’s testimony upon the stand was believed by the jury, doubtless the penalty assessed would not have been extreme. In view of the evidence, this court is manifestly not justified in concluding that the jury,was not unwarranted in declining to believe the testimony of the accused.

The motion for rehearing is overruled. 
      <§x=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     