holding that prosecutor’s comment that “this defendant has not told you all that happened on top of that hill” was a reference to the contents of defendant’s written statement, which was evidence that had been admitted, and, thus, was not a comment on his failure to testify
How later courts described this case
- holding that prosecutor’s comment that “this defendant has not told you all that happened on top of that hill” was a reference to the contents of defendant’s written statement, which was evidence that had been admitted, and, thus, was not a comment on his failure to testify
- concluding that prosecutor’s jury argument—“[n]ow this defendant has not told you all that happened on top of that hill, we know that”—referred to defendant’s statement in evidence and was not comment on his failure to testify
- holding that reference to defendant “not telling everything” where prosecutor was discussing defendant’s written statement was not comment on failure to testify but reference to written statement
- holding the State’s reference to the defendant’s “not telling everything” was a reference to the defendant’s written statement and not a comment on the defendant’s failing to testify
Written by the judges who cited it.
The opinion
DAVIDSON, Judge,
(dissenting).
Here is a case where two persons were charged with committing the same murder.
The one who actually comitted the murder, the one who actually fired the fatal shot, is first placed on trial. He is convicted and goes to the penitentiary. The other, this twenty-two-year-old appellant who the state admits did not actively participate in or commit the murder but says he is guilty because he aided the person who committed the murder, goes to his death in the electric chair. Yes, the man who actually commits the murder goes to the penitentiary, while the man who helped him dies in the electric chair!
It is difficult for me to understand that such is equal justice under law or that it is right as distinguished from wrong, as between men. If such it be, it is because the law so decrees and a jury has so decided. Whatever be the view, the fact remains that such an apparent inequity furnishes a good and sufficient reason why a conviction under such circumstances should be examined and inquired into with the purpose of determining whether the defendant received a fair and impartial trial under the law and whether the death penalty was assessed against him only after and as a result of such trial.
This case was tried upon the theory that appellant and Rodriguez entered into a common understanding and agreement to rape and commit the crime of sodomy upon the deceased and that the killing occurred during and while Rodriguez was engaged in carrying out or endeavoring to carry out that common agreement and design.
In applying that theory to the law, the trial court authorized the jury to convict appellant only if they believed (1) that ap *216 pellant and Rodriguez entered into such agreement; (2) that Rodriguez killed the deceased by shooting her with a pistol while committing or endeavoring to commit the rape and sodomy; (3) that the act of shooting the deceased in the head was such that appellant might have or should have contemplated would result from the commission by Rodriguez of the rape and sodomy; (4) that the shooting of the deceased was such an act that both Rodriguez and appellant should have reasonably contemplated would result from the endeavor on the part of Rodriguez to execute the common design of rape and sodomy.
Under such instruction the jury convicted the appellant, under a general finding of guilt. The record does not reflect upon which state of facts the jury’s finding was predicated.
Various exceptions were leveled at the court’s charge, chief among which was that the evidence did not authorize the charge.
There is an utter lack of evidence showing any agreement, conspiracy, or design to rape and commit an act of sodomy upon the deceased. There were no witnesses who so testified. There were no witnesses to the transaction.
If there be any evidence of such agreement, conspiracy, or design, it must be found in appellant’s voluntary confession. But that confession is wholly devoid of any statement of facts which would authorize such conclusion. Moreover, if appellant in the confession had so stated in so many words, there is no corroborating testimony thereof.
It must be remembered that it has always been the rule that the confession of the accused cannot, alone, establish the corpus delicti or the guilt of the accused or that an accused can be convicted upon his confession, alone.
There is, here, no testimony outside of or other than the confession of the appellant corroborative of any such agreement, conspiracy, or design having been entered into.
It follows that the evidence wholly fails to authorize the conclusion that Rodriguez and appellant entered into an agreement, conspiracy, or design that Rodriguez would commit an act of sodomy and rape upon the deceased. To say that such agreement is shown is to indulge in the rankest sort of supposition and speculation.
*217 But the insufficiency of the evidence does not stop there. There is, equally, an absence of any testimony that the killing of the deceased occurred while Rodriguez was committing or endeavoring to commit the rape and sodomy as agreed upon, or that the parties to the agreement, conspiracy, and design should have contemplated that in the execution of or attempting to execute the rape and sodomy Rodriguez would kill the deceased by shooting her with a gun or that such killing would reasonably result from such agreement, conspiracy, or design.
To the contrary, the undisputed evidence, which the state placed in evidence when it introduced appellant’s confession, shows that Rodriguez killed the deceased because she would not get out of the car. That testimony is not disputed by any other evidence in this case.
The killing, then, did not occur while Rodriguez was committing or attempting to commit rape or sodomy upon the deceased, as the state insists.
When the court affirms this case they necessarily hold as a matter of law that a conspiracy, agreement, or common design to rape and commit sodomy upon a female would result in the killing of the victim or that such would be reasonably calculated to so result. Such conclusion, either of fact or of law, is so utterly illogical and contrary to human experience as to be wholly without foundation. Yet the court so holds when they affirm this conviction.
In this connection, the fact must not be lost sight of that the killing of the deceased — that is, the firing of the shot that killed her — must have occurred prior to or during the commisssion of the rape and sodomy, for if the shooting occurred after the rape and sodomy had been consummated then the purpose of the conspiracy, agreement, and design had been accomplished and ended prior to the killing and could not have entered into or brought about the killing.
In affirming this case the court establishes as a rule of law that a conspiracy, agreement, or common design to rape and commit an act of sodomy embodies and carries with it the contemplation and notice that in the execution and commission of that agreement the victim will be shot in the head before or during the commission of the rape and act of sodomy.
I could never agree to such holding or proposition of law.
*218 The evidence does show appellant guilty as an accessory to the murder of the deceased. Such an offense does not authorize the infliction of the death penalty as punishment.
Appellant asked that his guilt as an accessory to the murder of the deceased be submitted as an affirmative defense against the crime of murder. That charge should have been given.
Under this record, appellant should not pay the death penalty.
I dissent.