# Ward v. State > Court of Criminal Appeals of Texas · June 18, 1941 · 144 Tex. Crim. 444 URL: https://www.frixlaw.com/law-library/cases/3978436 ## Case - **Full name:** William Ward v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 18, 1941 - **Citations:** 144 Tex. Crim. 444; 158 S.W.2d 516; 1941 Tex. Crim. App. LEXIS 605 - **Precedential status:** Published - **Opinion:** Addendum - **Judges:** Beauchamp - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3978436 ## Opinion text The State has filed a vigorous motion for a rehearing herein, and lays down the proposition that in our original opinion we have usurped the province of the jury in that where there is a controverted issue of fact and substantial evidence is presented upon both sides of such issue under appropriate instructions *Page 452 of the trial court, unless it is clear that an erroneous conclusion has been reached by the jury, this court will not disturb their finding on such issue. In this case appellant testifies to a long and varied list of mistreatments from the time of his arrest until his execution of a written statement in which he implicated himself in the unlawful death of Mr. Brown, the deceased. He oftentimes places himself in the presence of others than those whom he claims were mistreating him, and is also under examination as to his body and the signs of such mistreatment thereon by persons other than those from whom he claims to have received the mistreatment. In every such instance, save one, appellant's statements relative to his beatings, his burns and his bruises therefrom are not borne out by the testimony of the witnesses. The Sheriff of Titus County does bear out his statement relative to there being certain scars on the back of appellant's neck and body which had the appearance of burns, although the same were healed over less than a week after his arrest on this charge, at which time they were seen by such sheriff, who was in company with appellant's employer, who was also appellant's attorney at such time, but who on account of sickness did not appear at this trial, and while appellant was confined in the jail of a neighboring county. It appears that the appellant was the house servant of an attorney who was active in the defense of appellant until stricken with sickness, and although too ill to appear at this trial, nevertheless such attorney testified herein by deposition, and was shown to have been present when the Sheriff of Titus County testified that he saw the scars of what he took to be burns on the appellant's neck and back, and the depositions of such attorney made no mention of such scars, nor any signs of mistreatment. At every point where appellant testified he was mistreated, the State presented witnesses who contradicted each statement made relative to such mistreatment. The two State patrolmen who took appellant to the jail at Athens where the statement was first made, although charged by appellant with varied mistreatments and cruelties, denied each and every one of them, and other persons who saw appellant's body at such time state unequivocally that there were no bruises nor burns thereon, and that he suffered no mistreatment at such time in their presence. Eventually appellant again made an oral statement in the presence of the newly elected district attorney of *Page 453 that district, and claimed in his testimony that he denied the truthfulness of the statement, and told the district attorney that he had been beaten nearly to death in order to extort such confession from him. This district attorney was suffering an attack of influenza, and was not participating in the trial of the case, but at the conclusion of the case he arrived at the court house where the trial was in progress and testified, among other things, as follows: "I was not personally acquainted with William Ward at that time, and when we got into the jail house there Mr. Rolston County Attorney of Titus County at that time, was with me and possibly he may have told the sheriff our business there, that we wanted to see William Ward and talk to him, but anyhow as a result of whatever preliminaries may have been we went into the presence of William Ward there in the jail house and I introduced myself to William and told him that I was the newly elected District Attorney of this district, and was the man who would ultimately have to ask that the jury put him to death, if he was tried, and I said William this statement here appears to be a mighty bad thing and I want to know whether or not you made this statement freely and voluntarily, and whether or not it speaks the truth, and he said yes sir it is true. I then asked him whether or not the confession had been voluntarily made and whether or not he had been mistreated in any manner to extort the confession from him. He said that he made the confession freely and voluntarily and that he had not been mistreated nor abused by the officers; later on sometime there we asked William to take off all his clothes, and just about or prior to that time he told me that, he said Mr. McCasland I was struck one time and I said William where were you struck and he said I was struck there and he just put his hand up indicating somewhere about the head or face, and I said does it show where he hit you and he said No sir, somewhere along up there, and I asked him who hit him and where and why, and he said he didn't know who hit him or exactly when it occurred nor what they hit him with except that he thought it was a belt, and I asked him if that was all the striking or any mistreatment that he had whatsoever prior to the time he made a confession and he said that was all. I think Mr. Smith was present, or somewhere there near by, and Mr. Hugh Cross when he told me that. We then asked him to remove his clothes that his body might be inspected. Mr. Cross and Mr. Smith then examined and looked at his body then at the same time with me, they were standing *Page 454 there present and he stripped off there in front of us in the jail. We had him turn around so his whole body could be seen, I couldn't tell all the details there, but I know they were there and looked at his body, but how closely they looked I couldn't say, but they were there and looked at him for the purpose of seeing if he had any evidence of violence upon his person. Yes Sir, I did view the negro boy's body myself. There was no evidence of violence or mistreatment whatever upon the body of William Ward, not a one. There was not a single knot or whelp on his head or face when I examined him. No, I don't recall just who all was present there." In contravention of appellant's statement relative to his alleged mistreatment the State endeavored to refute same by the testimony of the district attorney, the Sheriff of Henderson County, Mr. Pennell, the two highway patrolmen, a barber, Urban Smith, Hugh Cross, a newspaper man, and Morris Rolston the county attorney of Titus County. The testimony of these eight witnesses, if believed by the jury, refuted every statement made by the appellant relative to his claimed mistreatment, and we think such statements raised an issue of fact that the jury should not only have been allowed to pass upon, but also that their verdict thereon should not be disturbed by this appellate court. There was also a question raised by appellant's attorneys in their able defense of him, that appellant was removed from jail to jail in order to forestall the issuance of a writ of habeas corpus in his behalf during the progress of the investigation relative to the death of Mr. Brown. There is testimony in the facts presented to us that during the investigation of this matter appellant was taken by his then attorney and employer out of the office of the county attorney prior to his questioning therein, and before any testimony of any material value had been uncovered and he was not returned to undergo his examination. Again it is further shown by the testimony of the Sheriff of Titus County that the same attorney previously on the same day, finding appellant in company with such sheriff at the jail steps, took the appellant away and said he would question him and if he had done anything the appellant would tell such attorney, the appellant being relieved of further questioning previous to the filing of any charges, and the attorney failed to bring the appellant back to undergo such questioning. It was therefore claimed that because of the fact that appellant, upon his arrest, was first taken to the jail at Pittsburg, *Page 455 Camp County, then to the jail in Smith County, then to the jail at Athens, Henderson County, then back to the jail in Smith County, and finally to the jail at Gilmer, in Upshur County, that such movements from jail to jail was evidence of the fact that not only was the confession not a voluntary one, but that such movements evidence the fact that they were made for the purpose of preventing the issuance of a writ of habeas corpus upon behalf of appellant in order to inquire into the reasons for his arrest and detention. There was testimony from the officers relative to the safety and security of the jail at Mt. Pleasant and the surrounding jails, and also testimony from citizens as well as officers relative to a feeling of indignation caused by the death of Mr. Brown, who seemed to have been rather popular in the community in which he resided, and it is shown by a fair array of witnesses there was some talk among such citizens about using violence against the person accused of having killed Mr. Brown, and there was testimony from the peace officers that such movements were for the purpose of the protection of appellant from such contemplated unlawful violence. It is also worthy of note that appellant was kept in the jail at Gilmer for some weeks; in fact until his trial, and no effort was made to sue out a writ of habeas corpus. Under the circumstances above detailed the careful trial court gave in charge to the jury, concerning the statement of appellant and their use thereof, the following: "You are further instructed that a confession of a defendant in order to be admissible in evidence against him, must be shown by the evidence beyond a reasonable doubt to have been freely and voluntarily made, without compulsion or persuasion, and in regard to the alleged confession of the defendant offered in evidence by the State and permitted to go to the jury, you are instructed that before you can consider the same as any evidence against the defendant, the State must show, and you must believe beyond a reasonable doubt, that the defendant was warned by the officer taking the same: (1) That he, the defendant, did not have to make any statement at all; (2) That any statement made by him, the defendant, may be used in evidence against him on a trial for the offense concerning which it was made. So in this case, if you believe from the evidence or have a reasonable doubt thereof, that the officer taking such confession, did not warn the defendant, that he did *Page 456 not have to make any statement at all, and did not warn him, that any statement he might make may be used as evidence against him, on a trial for the offense concerning which it was made, or if you believe from the evidence or have a reasonable doubt thereof, that such a confession was not freely and voluntarily made or if you believe or have a reasonable doubt thereof that the same was induced by duress, threats, coercion, fear, or by persuasion, or personal violence, or if you believe from the evidence, or have a reasonable doubt that the defendant William Ward was removed by a peace officer, or officer, from Titus County, Texas, or from jail to jail for the purpose of denying the defendant William Ward the benefit, use or right of the writ of habeas corpus, or in order to deny the defendant William Ward the right to advise the consult with his lawyer, (or if you believe from the evidence, or have a reasonable doubt thereof, that there were events, or series of events, which made the defendant fear for his safety or tend to weaken his will power,) and which events were connected with the securing of the confession, then you will wholly disregard such confession and not consider it for any purpose whatever, and draw no inference nor conclusions therefrom." Under this instruction and the contradictory statement of the appellant and his witnesses, and the State's witnesses, the jury were allowed and instructed to make their choice as their judgment and their oaths dictated, and evidently they were unable to believe the testimony of the appellant, arrayed as he was against the many State's witnesses to the contrary. It is a well-settled proposition of law that where there is such a controversy over any material matter of fact in the trial of a law suit, a jury being present, such conflict is properly submitted to the jury for its determination, and their finding thereon will not be disturbed by this appellate court. They had the witnesses before them, they observed their demeanor, their countenances, the glance of the eye, the involuntary exclamation, their eagerness or reluctance, the question as well as the answer, all of which privileges being denied to the appellate court, which is relegated only to the bare page with the typewritten statement of the substance in a narrative form of the testimony. The demeanor oftentimes gives the lie to what is said, and actions sometimes speak more plainly than words. In the case of Blake v. State, 7 S.W.2d 579 , Presiding Judge Morrow said: *Page 457 "T. H. Walters was called by the appellant and testified that he, in company with Mr. Hamilton, brought the appellant from Plainview to Tulia before the confession was made. The said witness said that he told the appellant that he was to be taken to Tulia; that he might as well make up his mind to make a statement; that he said to him: " 'The attitude you are taking in this, you are trying to beat it. You are fixing for a mob to get you, and under present conditions there is but little difference it makes to me about it.' * * * "If there was evidence * * * of sufficient cogency to make the validity of the confession questionable, it was still a question for the jury's decision." On motion for rehearing Judge Lattimore said: "The question of the conformity to the rules regarding confessions is primarily for the trial judge, but, when he admitted said confession, and the question of fact as to the voluntary character of such confession and its freedom from improper influence arose, the court properly submitted that issue to the jury." In the case of Wheatley v. State, 34 S.W.2d 876 , Judge Hawkins said: "By his action in overruling the motion to withdraw the confession, we must assume that the court in the first instance solved the question against appellant's contention upon the disputed issue, otherwise, he would have withdrawn the confession, but, realizing that it raised an issue of fact, he also submitted it to the jury for their consideration." In the case of Tance v. State, 93 S.W.2d 431 , Judge Christian said: "Appellant introduced testimony tending to show that he had been whipped by the officers before making a confession. Testifying for the State, said officers denied that appellant had been whipped or mistreated in any way. In short, their testimony was to the effect that the confession was voluntarily made. In this situation, the trial court properly submitted the issue to the jury. Appellant's objection to the introduction of the confession was properly overruled." *Page 458 In the case of Garza v. State, 136 S.W.2d 861 , Judge Krueger said: "On the trial, he repudiated his confession and testified that the statements contained in his confession were not true, and that he made them because the officers whipped him and he was afraid not to admit that he was the person who set fire to the cars. The officers testified that there was no mistreatment of the appellant by them. The question of whether or not the confession was freely and voluntarily made was submitted by an appropriate instruction to the jury for their determination." In cases such as the one at bar we would do violence to such a multitude of cases consistently threading through the decisions of this court and through the history of the jurisprudence of the English speaking people, were we to arrogate to ourselves the power to pass upon controverted questions of fact that have borne the scrutiny of a jury and their decision, well knowing the sanctity of such matters, and would place this court in the position of an usurpation of a power that has been held inviolate as a jury province since the establishment of this Republic and its adoption of the common law of the mother country, and the establishment of the right of a trial by jury by means of the privileges wrung from King John in the twelfth century as evidenced by the Magna Charta. No matter what our personal belief might be, we do not feel that we have, nor do we usurp the power to set aside the finding of this jury in the case at bar. Surely we have the right to infer, and it is our duty to believe that the trial jury honestly and conscientiously followed the liberal instruction given to them by the trial court relative to the use of this purported confession, and thus believing we are convinced that in our views expressed in the original opinion we were in error. So believing, the State's motion for a rehearing is granted, the opinion reversing this cause is set aside, and the judgment is now affirmed. APPELLANT'S MOTION FOR REHEARING. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3978436. Public record. Not legal advice.