Opinion
No. 34771.
June 27, 1962.
Appeal from the Criminal District Court, Harris County, E. B. Duggan, J.
John Cutler, Houston, for appellant.
Frank Briscoe, Dist. Atty., Walter A. Carr, Lee P. Ward, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from an order refusing appellant bail, after indictment for murder.
At the hearing, the State called the mother of the deceased, who testified that she left her eleven months old child in the care of appellant and that when she returned she found her child lying lifeless on a sofa, that she carried him to the hospital where he was pronounced dead.
The Harris County medical examiner testified that his examination revealed the cause of death as being a fractured skull.
Appellant's confession recites that the child began to cry after he was left alone with it and that he tried to 'keep him quiet' by spanking him and striking him on the head with a high top work shoe, after which he picked him up and threw him on the bed, causing his head to hit the bed post.
It was developed that appellant was free on a bail bond to answer to a charge of robbery at the time in question and that his bondsmen thereafter surrendered him.
Appellant sought to raise an issue as to the voluntary nature of his confession by calling his sister, who stated that she saw appellant before he was placed in jail and later saw him in jail and noticed that his eyes and face were 'swollen.' There is no showing as to whether this was before or after the confession was made or that the 'swollen' condition of his face was the result of any externally applied force. For this reason, the record before us fails to raise an issue as to the voluntary nature of the confession, and the authorities upon which appellant relies have no application.
We have concluded that malice has been shown such as would warrant the trial court in refusing bail.
The judgment of the trial court is affirmed.