
    SILVA et al. v. STATE.
    (No. 9627.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    1. Criminaj law <&wkey;534(2) — Testimony as to bullet and bullet marks in automobile held admissible in trial for robbery as corroborating defendant’s confessions.
    In trial for robbery with firearms, testimony as to marks of bullet holes and finding of bullet in victim’s automobile held admissible as corroborative of defendants’ written confessions.
    2. Criminal law <&wkey;534(2) — Evidence of finding, remnants of papers at place of robbery held admissible as corroborative of defendants’ confession.
    In trial for robbery with firearms, evidence of finding remnants of papers, on which were certain inscriptions, at place of robbery, held admissible as corroborative of defendants’ written confessions that some of victim’s effects were’ burned at such place.
    3. Criminal law <&wkey;671 — Withdrawal of jury while laying predicate for introduction of confessions, held error.
    Voluntary nature of written confessions being jury question, court erred in causing withdrawal of jury at 'defendants’ request while predicate for introduction thereof was laid.
    4. Criminal law <&wkey;l 168(2) — Admission of confessions following withdrawal of jury while laying predicate held not error.
    Where privilege of introducing evidence on issue of voluntary nature of written confessions was tendered defendants, and testimony thereon was subsequently heard by jury, court’s admission of confessions, after having caused withdrawal of jury while laying predicate for their introduction, was not error.
    5. Criminal law <&wkey;>,537 — Verbal confessions leading to discovery of victim’s automobile held admissible in trial for robbery with firearms.
    Verbal confessions, leading to discovery of automobile thrown into river by defendants, after robbing and billing driver held admissible, under Code Or. Proc. 1925, art. 727, in trial for robbery with firearms.
    6. Criminal law <&wkey;l043(1) — Failure to supply omission to charge on corroboration of confession can be raised by complaint of refusal of special charge.
    Failure to supply omission to charge on córroboration of extrajudicial confession in main charge could be raised by complaint of refusal of special charge thereon.
    7. Criminal law <&wkey;830 — Special charge sufficient to call attention to omission of charge demanded by evidence or charge on subject in court’s language should be given.
    If charge on necessity for corroboration of extrajudicial confession is demanded by evidence, requested special charge sufficient to call court’s attention to omission, or one covering subject in court’s own language, should be given, though court would be justified in refusing requested charges as written.
    8. Robbery &wkey;o24(l) — Proof essential to establish robbery under circumstances authorizing death penalty stated.
    To establish robbery under circumstances authorizing death penalty, proof that alleged victim was robbed, that firearm or deadly weapon was used or exhibited in commission of offense, and that defendants were guilty agents, is essential.
    9. Criminal law <&wkey;534(D — Proof of robbery authorizing death penalty need not be wholly independent of confessions.
    While, robbery, under circumstances authorizing death penalty, cannot be shown by confession alone, proof need not be wholly independent of confessions.
    .10. Criminal law <&wkey;l 173(2) — Failure to charge that conviction cannot be had on confession alone not reversible error, where crime was undoubtedly committed by some one.
    Where there is no doubt that crime was committed by some .one, and defendant’s agency is shown alone by his confession, failure to charge that conviction cannot be had on confession alone is not reversible error.
    11. Criminal law <&wkey;78l (,2)— Corroborating evidence held insufficient to dispense with necessity of charge that extrajudicial confession alone would not establish guilt.
    Evidence held insufficient to show commission of robbery-with firearms, so as to dispense with necessity of charge that confession out of court would not alone establish defendant’s guilt.
    12. Criminal law <&wkey;73’6(2) — Whether confessions were voluntary held for jury on conflicting evidence.
    Whether alleged confessions of robbery were voluntarily made held for jury on conflicting evidence.
    13. Criminal law &wkey;>78l(5) — Jury should be instructed as to necessity of finding voluntary character of confessions and truth of facts therein.
    Jury’s finding of truth, beyond reasonable doubt, of facts embraced in confessions, and voluntary character thereof, is imperative to warrant conviction, and court should so instruct.
    Appeal from District Cotirt, Hidalgo County ; Hood Boone, Judge.
    Canuto Silva and Gerardo Zamora were convicted of robbery, and they appeal.
    Reversed.
    Lee Minner and Ramsower, Minner & Sea-well, all of McAllen, for appellants.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is robbery; punishment fixed at death.

The deceased, Meyer Redman, was a peddler. He traveled from place to place, carrying his wares in a Ford car.

The written statements of each of the appellants were introduced in evidence. According to these statements, the two appellants and one Quintinilla entered into a conspiracy to kill the deceased in order to acquire his property. They subsequently carried the‘agreement into effect. Two of the appellants lay in wait for the deceased, while the third went with him in his car, and, as they approached a certain point, the deceased was killed by Quintinilla, his car was stripped of the tires and other detachable things of value, the body of the deceased was bound to the steering wheel, and the car, with the body attached, was thrown into the Rio Grande river. The merchandise which was .in the car was appropriated by the conspirators by taking it across the river into Mexico and there disposing of it. All the foregoing comes from the statements of the accused above mentioned.

Several of the bills of' exception relate to the procedure followed with reference to the written confession of each of the appellants. Bills Nos. 1, 2, and 3 related to the confession of Silvas; others of like nature related to the confession of Zamora.

The testimony descriptive of the condition of the automobile, showing that it had marks of bullet holes in the cushion and the finding of a bullet in the car was not improperly received. These coincided with the confessions of the appellants, and were corroborative thereof.

In bill No. 13 complaint is made of the receipt in evidence of proof that, at the point where the deceased was killed, there were found remnants of certain papers upon which there were certain inscriptions. The finding of these papers was corroborative of the confession of the appellants to the point that some of the effects of Redman were burned at the place of the homicide and the taking of his property. See Gray v. State (Tex. Cr. App.) 268 S. W. 941.

The court, at the request of the appellants, caused the withdrawal ■ of the jury while the predicate for the introduction of the written confessions was laid. The reason for this request is not apparent, as the only question dealt with related to the voluntary nature of the confessions. That being a jury question, the evidence relating to it should have been heard by the jury. See Morris v. State, 39 Tex. Cr. R. 377, 46 S. W. 253; Branch’s Ann. Tex. P. C. § 75. The bill, as qualified, shows, however, that the privilege of introducing evidence on the issue mentioned during the absence of the jury was tendered the appellants. Moreover, it is gathered from other parts of the record that testimony on the issue mentioned was subsequently heard by the jury. Upon the record as presented, it is conceived that, in receiving the written confessions of the appellants in evidence, no error was committed. ,

In addition to the written confessions, there was received testimony to the effect that each of the appellants had made verbal-confessions. The verbal confession of Silvas was proved by the witness Baker, and that of Zamora by the witness Dennet. If appears that these verbal confessions were made separately, and that the circumstances detailed by the witnesses named led to the discovery of the automobile mentioned, and were such as authorized the receipt of the evidence under that part of the statute which declares that a verbal confession or statement of one accused, while under arrest, may be received in evidence against him, when it results in the discovery of secreted property connected with the alleged offense. See article 727, C. C. P. (1925); McClure v. State, 100 Tex. Cr. R. 545, 272 S. W. 157.

Two special charges attempting to have submitted to the jury the necessity for corroboration of an extrajudicial confession were refused and exception reserved. In qualifying the bill, note is taken of the fact that there was addressed to the court’s main charge no exception upon the ground of the omission to charge on the subject of corroboration. The main charge being silent upon the subject, the failure to supply the omission could be raised by complaint of the refusal of the special charge. See Parker v. State, 98 Tex. Cr. R. 216, 261 S. W. 782; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703. Owing to the form of the charges, the court may have been justified in refusing to give them as written. If a charge on the subject was demanded by the evidence, however, the requested charges were deemed sufficient to call the court’s attention to the omission and to make it incumbent upon him to give either one of the special charges or one in his own language covering the subject.

To establish the offense of robbery under circumstances authorizing a death penalty, it was essential that there be proof that Redman was robbed, that in the commission of the offense a firearm or deadly weapon was used or exhibited, and that the appellants were the guilty agents. This could not be shown by the confession alone; nor was it required that, under the law, the proof come wholly from evidence independent of the confessions. Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Aven v. State, 95 Tex. Cr. R. 159, 253 S. W. 521. If, in the present case, the offense of robbery with firearms were established by evidence independent of the confessions of the accused, the necessity for a charge upon corroboration might not exist. As "said by Mr. Branch in his Ann. Tex. P. C. § 75:

“Where there is no doubt that the crime has been committed by somebody, and defendant’s agency with it is shown alone by his confession, it is not reversible error to fail to charge that a conviction could not be had upon a confession alone.”

See, also, Willard v. State, 27 Tex. App. 391, 11 S. W. 453, 11 Am. St. Rep. 197; and cases collated in Branch’s Ann. Tex. P. C. § 75; Aven v. State, 95 Tex. Cr. R. 160, 253 S. W. 521.

Aside from the confession, it was shown that Redman, a peddler, departed from his home in Houston, Tex., in a Ford automobile with a quantity of merchandise on the 12th day of August, and had not afterwards returned to Houston. On the 13th of August, he was seen at the store of the witness Greenfield in the town of Mission. Upon leaving the store, Redman told Greenfield that he would return that night, but he failed to do so. Prom his testimony, we quote:

“There was a boy in the ear. * * * That is the first time I saw that boy. He was a young boy, shaved up nice and smooth, with a little cap. He looks like this one (Silvas). He had a little black cap, and ten days later I didn’t recognize him; he had a big Mexican hat on, and I didn’t recognize him. He looks like this man here. I don’t know where they went to then — put the goods in the car and left. I didn’t see the time they left; he told me he would be back to-night, and I never saw him any more.”

About two weeks after Redman was last seen, as related by the witness Greenfield, the automobile in which he was traveling was discovered in the Rio Grande river about a mile from the village of Tobasco. The car had been stripped of its tires," batteries, and other movable parts of value. The steering wheel was broken, and had a piece of barbed wire attached to it. There was a bullet hole in the rear seat of the car; also a bullet in the car. On the ground near the place where Redman was supposed to have been killed, there were found some charred pieces of paper, one of them having data upon it referring to a garage in IIous-ton. There was a substance haying the appearance of blood somewhere near the point where Redman was supposed to have been killed.

The evidence, aside from the confessions, is not deemed sufficient to show that the offense of robbery with firearms was committed upon Redman. Omitting the confessions, it was not shown that Redman was killed or wounded. Neither was it shown that the automobile was in the possession of the appellants or either of them, nor that the goods which belonged to Redman were taken from him. These essentials of the crime come from the confessions alone. No independent proof was made that the áppellant Zamora was ever seen in company with Redman or with Silvas. According to the confessions, the deceased was killed by one Quintinilla. Aside from the confession, the record is silent as to the existence of such an individual or to the association of any person with the appellants. According to the confessions, Redman’s goods were sold, as were parts of his automobile. Of this there is no independent proof; nor does the record reveal any effort to account for its absence.

Touching the connection of the charred paper with Redman, no evidence was introduced other than that which comes from the confessions; nor is there any intimation of an inquiry at the garage in Houston to connect the charred paper with Redman. No pistols were found in the possession of either of the appellants. No evidence was adduced that either had, owned, or possessed a pistol.

In this state of the record, the corroborating evidence, adduced upon the trial is not of such cogency as to dispense with the necessity of having a charge upon that subject to the end that the jury might know that, under the law of the land, a confession made by the accused out of court would not alone establish his guilt. Such a charge is held necessary in numerous decisions of this) court, and in other jurisdictions, because it is hard for the jury to grasp the fact that one who admits his commission of the criminal act is not perforce of this admission alone to be convicted. That such a confession is not always reliable, experience teaches and all courts recognize. On the subject, Mr. Greenleaf, in his work on Evidence, says:

“ * * * It is a fact that numbers of persons have confessed that they were guilty of the most heinous crimes, for which they suffered the most horrible punishments, and yet they were innocent. In the sixteenth and seventeenth centuries, in enlightened England, men and women confessed that they were guilty of witchcraft — communion with evil spirits— and suffered at the stake therefor, and at this day men, through fear of personal punishment., or through hope of averting such punishment, confess that they are guilty of crime, without the slightest foundation in truth for such confessions.”

See, also, Underhill’s Grim. Bv. (3d Ed.) p. 342, note 4, and cases cited.

In the present case, the making of the confessions was not admitted by the accused, and whether they were voluntarily made is challenged by the evidence and properly became an inquiry for the jury. Sparks v. State, 34 Tex. Cr. R. 86, 29 S. W. 264, and other cases collated by Mr. Branch in his Ann. Tex. P. C. § 75. The finding by the jury of the truth of the facts embraced in the confessions, beyond a reasonable doubt, and that they were voluntary, was imperative to warrant the verdict rendered. Dunlap v. State, 50 Tex. Cr. R. 504, 98 S. W. 845. The attention of the jury, however, was not directed in the charge of the court to the necessity of a finding that the confession was voluntarily made or that it must be true. Upon another trial, such instruction should be submitted to the jury. In the present instance, it is not so presented by the record as to warrant a reversal because of its omission.

The failure, however, to instruct the jury upon the necessity for corroboration of the confessions, was sufficiently raised to require its review, and, in refusing to give to the jury, in a charge, the learned trial judge, in the opinion of this court, committed error which requires a reversal of the judgment. It is accordingly ordered. 
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