author: PRENDERGAST, P. J. PRENDER,G-AST, P. J.

text:
    GONZALES v. STATE.
    (No. 3127.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    On Motion for Rehearing, June 24, 1914.)
    1. Witnesses (§ 395) — Impeachment— Support.
    Where, in a prosecution for homicide alleged to have grown out of a conspiracy, defendant sought to impeach the state’s principal witness on three distinct points, and the evidence tended to impeach'him, the state was entitled to support the witness’ testimony by showing that shortly after the transaction, and prior to the trial, the witness made statements to others in accordance with his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dee. Dig. § 395.]
    2. Criminal Law (§ 1122) — Trial—Instructions — Objections.
    Where a criminal prosecution was tried after the taking- effect of Act April 5, 1913 (Acts 33d Leg. c. 138), requiring that objections to the charge be made before argument, objections not shown by the record to have been so made cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    3. Ceiminal Law (§ 1173) — Appeal — Refusal of Instructions — Requested Charge — Prejudice.
    In a criminal prosecution, accused was not prejudiced by the court’s refusal to charge that the burden of proof was on the state throughout the trial and never shifted to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    4. Criminal Law (§ 432) — Evidence—Conspiracy — Newspaper.
    Where decedent was killed as an incident to a conspiracy to illegally organize an armed force in Texas to invade Mexico, in accordance with a certain political party, and accused testified that he was a subscriber to a newspaper, and that one of the principal things which-induced him to join the company was articles in the paper, and that the principles announced in the paper were those of the party to which he belonged and joined the company to carry out, a translated copy of the paper was admissible as showing the purpose for which the conspiracy was organized and for which the defendant joined it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1021; Dec. Dig. § 432.]
    Davidson, J., dissenting.
    On Motion for Rehearing.
    5. Criminal Law (§ 722) — Trial — Argument of Attorney.
    Where, in a prosecution for homicide alleged to have been committed in furtherance of a conspiracy to organize in Texas an armed band to invade Mexico, defendants’ attorneys devoted their argument almost exclusively to historical sketches of conditions of the Mexican people and other revolutions, referring to the condition of the Mexican people and their struggle for liberty, comparing defendants to other revolutionists for liberty, and defended the Mexicans in their present struggle against their President, whom he dubbed a tyrant, argument of the district attorney in reply that defendant was a member of thé faction in Mexico, the principles of which were murder, rapine, and plunder, etc., was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. § 722.]
    Appeal from District- Court, La Salle County; J. F. Mullally, Judge.
    Jesus Gonzales was convicted of murder, and he appeals.
    Affirmed.
    W. F. Ramsey and C. L. Black, both of Austin, R. W. Hudson and Magus Smith, both of Pearsall, and F. B. Earnest, John W. Willson, and J. Albert Strawn, all of Cotul-la, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUM3ER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   PRENDERGAST, P. J.

Appellant was convicted of murder and his punishment assessed at life imprisonment.

This is a companion case to that of J. A. Serrato, decided by this court May 6, 1914, and also that of Lino Gonzales, decided May 13, 1914. In fact, appellant is one of the same persons indicted with said Serrato and Lino Gonzales and others in the same indictment. In said two cases decided, we gave a rather full statement of the facts. The main witnesses, especially for the- state, in those two cases were the same witnesses who testified in this, and they gave substantially the same testimony in each case. Of course appellant did not testify in either of those cases. He did in this. Neither of those parties, of course, testified in this. Each of them did testify in their respective eases. Appellant in this case testified he was not one of the -four persons whom Buck swore killed the deceased, Ortiz. In other words, by his testimony he substantially put himself in the same attitude that Serrato and Lino Gonzales put themselves. By Buck’s testimony, however, the appellant in this case was shown to be one of the four persons who actually shot and killed deceased. In that respect, and practically in that only, does this case differ from the others. Treating this case from appellant’s standpoint, what was said in the other cases equally applies to him in this. However, from the state’s standpoint in this case, he was, without doubt, one of the persons who actually shot and hilled Ortiz. Substantially the same questions were raised and passed upon in the other cases that are raised in this, so far as the introduction of evidence is concerned, and the charges of the court given, and the complaints of the charges which were given and not given. No further discussion of any of those questions is necessary in this case. There are some questions raised in this case that were not in either of the other cases; which we will discuss and decide.

Eugene Buck in this, as in the other two cases, was one of the state’s most material, if not the most material, witness. In his direct testimony, when first introduced by the state, he positively identified appellant as one of the persons who captured and kidnapped him and deceased, Ortiz, and one of the persons who tied his and the hands of Ortiz behind them with ropes; and he identified him as one of the four persons who actually shot and killed deceased. He also identified Rangel^ Gisneros, and Alzalde as the other three. His description of these four persons, in his direct testimony, was rather general. When appellant took him on cross-examination, his attorneys required him to testify in the minutest details the actual description of each of said four persons (unless it be Rangel) — their dress, their hats, their size, their age, color of their hair, their voices, and every other special minute detail that could be thought of — also particularly what appellant and each of the others said from first to last. They also had him to go into the minutest details of some of the other persons who captured him and Ortiz, and particularly of what may be designated “a little Jap-looking Mexican fellow.” It is perfectly evident by this cross-examination, which is very lengthy, that they sought to show by him that he was mistaken in testifying that appellant was one of the four persons who shot and killed the deceased, and they were seeking to show that he mistook appellant for the little Jap-looking fellow, and that it was the little Jap-looking Mexican, and not appellant, who was one of the four who shot and killed deceased. They then cross-examined him as to his testimony on the point of identity of the appellant on one of the previous trials, and attempted to show, and the evidence tended to show, by this cross-ex^ amination, that his identity of appellant on the previous trial was somewhat different or conflicting from what it was on this trial. They also by this cross-examination sought to show that one of the persons who was killed when the crowd was captured, two days after the killing of Ortiz, by the United States soldiers and the sheriff and his posse, was the person he now identified and testified was appellant, and that on the former trial he had identified that person, instead of appellant, as one of the four who shot and ■killed Ortiz. The appellant made so much headway on these points, tending to contradict Buck, that when he was turned back to the state for redirect examination the district attorney, without objection by appellant, had the sheriff to bring into open court the 11 other defendants charged in said same indictment with murdering deceased and had them to take seats around in the courtroom. The district attorney thereupon had the witness Buck to point out the three persons other than appellant whom he claimed were the three with appellant who shot and killed the deceased. The witness did this. After looking at all the men, he picked out and testified that Rangel was one, Alzalde was another, Martinez and appellant the others. Immediately after this, the witness was turned back to appellant and recross-examined, and they at once went into the examination of the witness again. They asked him if he had not made a mistake in pointing out the four men whom he claimed did the actual killing in identifying Martinez as one of them, instead of Cisneros. 1-Ie again observed the men and said that in his designating Martinez as one of them he was mistaken; that Cisneros, instead of Martinez, was one, and that in designating Martinez he had made a mistake, and that it was in fact Cisneros. They then took him up and went into a long cross-examination as .to what he had testified as to the identity of these two persons and appellant on the other trial. They had the stenographer to reproduce and read to him his testimony on the previous trial. This was gone into elaborately and to a great extent; the appellant seeking to show, and the evidence tending to show, that his testimony on the previous trial in identifying the parties was different and conflicting from that on this trial, the state seeking by it to show that there was no material difference.

Appellant also sought to show by another witness Thornton, and their cross-examination of him without question tends to show, that said Buck identified to him the little Jap-looking Mexican, who was killed when they were captured, as one of the four, instead of appellant, who shot and killed deceased.

Taking the record as a whole, or taking appellant’s bills of exceptions by themselves alone, they unquestionably show that appellant sought to impeach the witness Buck in three particulars: First, that he had identified Martinez instead of Cisneros as one of the four who did the actual killing. There is no question but that said witness on this trial did at first identify Martinez as one of the four, and later claimed to be mistaken as to that, and then testified positively that Martinez was not one of the four, but that Cisneros was instead. Second, that, on one of the former trials, by the description he gave he identified the little Jap-looking Mexican as one of the four instead of appellant. Third, by the witness. Thornton it was shown, or his evidence tended to show, that Buck before this trial had identified the little Jap-looking Mexican, the one who was killed when they were all captured, as one of the four, instead of appellant, whereas he now testified that appellant, and not the little Jap-looking Mexican, was one of the four. There can be no question but what they sought to impeach, and the evidence tended to impeach, the witness Buck on these three points. The bills and the arguments about them clearly and distinctly show this. There is no principle or rule better established- in this state than that, when this is the case, the state can bolster up its witness thus impeached by showing that shortly after the transaction he made statements to others, similar or to the same effect as that now testified to by him on the trial. Mr. Branch, in his Criminal Law, § 874, collates some of the authorities on this point. There are a great many, but we deem it unnecessary to collate and cite them.

So that the court in this case did not err in permitting the state to prove by the witnesses Knaggs, Gardener, White, and Campbell in substance and effect that very soon after the capture of appellant and all his associates the witness Buck did point out to each of them the said four persons he now testifies were the persons who shot and killed the deceased, and appellant’s bills 58, 59, 62, and 49, raising these questions, show no error. What we hold on this question is not in conflict on this point with Clark v. State, 39 Tex. Cr. R. 152, 45 S. W. 696, Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274, 60 Am. St. Rep. 56, and other cases cited and relied upon by appellant. Appellant, in citing and relying upon Murphy v. State, 41 Tex. Cr. R. 120, 51 S. W. 940, and Bowen v. State, 47 Tex. Cr. R. 146, 82 S. W. 520, overlooks the fact that the holding of the opinions in those two cases were modified, if not overruled, bj this court in Weaver v. State, 150 S. W. 786.

case was tried in October, 1913, long after the act of April 5, 1913 (Acts 33d Leg. c. 138), amending articles 735, 737, 743, and adding article 737a to our C. O. P., went into effect, whereby it is expressly required that objections to the charge of the court of either commission or omission shall be made before the argument begins. The record in this case does not show that any objections were thus made to the court’s charge. The judge gave a full and correct charge on cir-cirevidence. He also affirmatively required the jury to believe, beyond a rea-readoubt, every essential fact to show appellant’s guilt before they could find him guilty, and, if they did not so find, to acquit him. In addition he told the jury that de-dewas presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt, and, in case they had a reasonable doubt as to his guilt, to acquit him; still in addition that in all criminal cases the burden of proof was on the state.

There is in the record a special charge, asked by appellant but refused by the court, to the effect that the burden of proof rests upon the state throughout the trial and never shifts to defendant. There is nothing to show that this charge was requested before the court read his charge to the jury and the argument had been concluded. It seems, therefore, very doubtful whether the question is raised in such a way that it can be considered by this court. We think not. But if it was asked and refused in the proper time, clearly under the statute (article 743), as it now is, the refusal of the court to give appellant’s said special charge presents no such error as would authorize or require this court to reverse this case. Most if not all the old cases cited by appellant which indicate that it was error to refuse to give such charge were rendered before the amendment of 1897 of article 743, and, we think, have no application now. We fail to see how it could possibly have injured appellant not to have given said charge.

The appellant, in his direct testimony, among other things said that he was a subscriber to the newspaper “Regeneración,” and that he received and read that paper; that said Oapt. J. N. Rangel must have gotten his name from the subscription list of that paper; and that Rangel wrote to him, and that he went and joined Rangel and his company, being induced by what was published in said paper. On cross-examination he stated that one of the principal things that induced him to join said company, etc., was the articles in said paper. One of the copies of the paper was then exhibited to him, and he identified it as one of them. A translation of this article was thereupon introduced in evidence. He further testified that the principles announced in that paper and of the Liberals party therein specified was the one to which he belonged and joined said Ran-gel’s company to carry out. The article introduced is quite lengthy. We deem it unnecessary to copy all of it. A part of it is:

“We Liberals proclaim that everything shall be for everybody, and that each producing agent shall consume not in accordance with his ability -but in accordance with his necessity. In order to attain these ends, we Liberals will fight to snatch, to grasp from the hands of the rich the land, the waters, the mountains, the mines, the factories, the shops, the railroads and all other means of transportation, through the medium of arms, leaving everything in the hands of the poor so that these can agree and will organize a protection free from all masters of every kind.”

The court committed no error, as claimed hy appellant in his bills 63 and 64, in permitting the state to have him testify, as shown above, and to introduce the translated copy of the paper to which he was a subscriber, and which he read, and which he said announced the principles which he and Rangel and his company were intending “to do” and fight for in Mexico. There is nothing else in this record that requires any discussion.

There being no error, the judgment will be affirmed.

DAVIDSON, X, dissents.

On Motion for Rehearing!.

PRENDER,G-AST, P. J.

In his motion for rehearing appellant presents but some of the same questions originally raised and others not mentioned specially in the opinion heretofore. We will discuss in this opinion such of these as we deem necessary.

In discussing his bills 49, 58, 59, and 62, we stated he made no objection when the court had the 11 other defendants brought into court for the purpose of identification of the 4 who did the actual killing of Ortiz, as claimed by the state’s witness Buck. He now calls our attention to the fact that he did object to their being brought in, as shown by his bill No. 45. We find that he did object to said parties being brought into the courtroom, and this court was mistaken in the original opinion in saying he did not object. His objections, shown by bill 45, are:

“We do not care to bring these parties in here and have him identify them in. the trial of this defendant. We do not see that it is material. It would just go to detract the minds of the jury from this trial, and we do not think it advisable.”

The point has been expressly decided against appellant in McIver v. State, 37 S. W. 745; Benson v. State, 69 S. W. 166. So that this court’s incorrectly stating that he made no objection did not and could not affect nor change the decision of the question. Besides, the bringing in the parties resulted to his advantage decidedly, because Buck made a mistake at first in the identification of one of the parties, as shown in the original opinion.

He also specially calls our attention to his bill of exceptions No. 13, wherein it is shown that he objected to the charge of the court because it “failed and omitted to instruct the jury distinctly for what purpose they should consider the evidence of Gardner, White, Allen, Knaggs, Wilcox, Barnard, Boynton, Deckel-, Dickens, and Campbell,” claiming the evidence of these witnesses “did not establish the corpus delicti and was not offered for such purpose, nor to prove defendant committed the offense, and that the law required that such evidence be limited in the charge, and that the court’s charge should state for what purpose such evidence had been admitted and for what purposes the jury may consider it.” The testimony of several of these witnesses was very material to establish many circumstances and facts which tended to make the case against appellant. The testimony of others was for bolstering the testimony of Buck as to the identity of appellant as one of the four who actually killed deceased. It would have been improper for the court to have given any such charge as this bill points out. Besides, to have called especial attention to the supporting testimony of Buck would have been on the weight of the evidence and against appellant. , His objections were too general to specifically call the court’s attention to any charge applicable to the testimony of these respective witnesses.

He also calls our attention to his bill of exceptions No. 5, wherein he complains of this language of the district attorney, “That defendant, Jesus Gonzales, was a member of the Zapata Faction in Mexico, whose principles were murder, rapine, and plunder,” used in argument. The court, in allowing the bill, thus qualified it:

“A red flag with white lettering on it was introduced in evidence by the state, and defendant, while on the stand, identified it as the flag of the Liberal party of Mexico, his political party in Mexico. The district attorney stated the following: ‘Was he fighting for Huerta? No, because the flag of Huerta is the flag of the Mexican Republic. Was he fighting for Carranza? No, because the flag of Carranza is the tricolor of Mexico. He was fighting for Zapata, the leader of the Partido Liberal in Mexico, the flag of murder, rapine, and plunder.’ This remark was made in answer to argument of the attorneys of the defendant as follows: Judge Earnest’s speech was devoted exclusively to a historical sketch of the conditions of the Mexican people, from the time of Cortez, recounting their oppressed conditions from the time of the Spanish, and Judge Earnest did not discuss the evidence. Earnest also spoke about the French. Revolution. The speech of Mr. Smith referred to the condition of the Mexican people and their struggle for liberty, comparing the defendant’s to other revolutions for liberty, mentioned the Battle of San Jacinto, among other things. Mr. Strawn also spoke at length about the present condition in Mexico and defended — the Mexicans in the present struggle against Huerta, as a tyrant. And the district attorney stated that the red flag was the flag of Zapata in answer to the argument of Mr. Smith, wjho, in his speech, asked the question that when in history could it be shown that the red flag had ever been used for a bad purpose.”

The bill as qualified shows no error.

In this connection we call attention to what the principles of the party, which appellant joined and was attempting to carry out, were, and the extract from the paper “Regenera-ción,” a part of which is copied in the original opinion.

The motion is overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    MARTINEZ v. STATE.
    (No. 3337.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1914.)
    1. Homicide (§ 235) — Conspiracy—Participation.
    In .a prosecution for homicide committed in furtherance of antilegal conspiracy to organize in Texas an arme'd band to invade Mexico, evidence held to warrant a finding that defendant ■was a member of the band and engaged in the furtherance of the conspiracy at the time of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 494; Dec. Dig. § 235.]
    2. Homicide (§ 172*) — CONSPIRACY—Purpose —Evidence.
    In a prosecution for homicide committed as incidental to an illegal conspiracy to organize in Texas an armed band to invade Mexico, a manifesto in the Mexican language, purported to have been written by a Junta in California, intended to incite Mexicans to rebellion, found in the possession of one of the conspirators, who separated from the others a short time prior to their arrest, but who was first arrested, was admissible against accused to show the illegal character of the conspiracy.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 372, 373; Dec. Dig. § 172.]
    3. Homicide (§ 29)— Conspiracy — Purpose.
    Where, in a prosecution for homicide, the state did not claim a specific conspiracy to kill deceased, but that he was killed as an incident to a conspiracy to organize in Texas an armed force to invade Mexico, the members of the company not immediately concerned in the killing could only be convicted of homicide on proof that the killing was incidental to a conspiracy to do an unlawful act and was within the scope thereof.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 47; Dec. Dig. § 29.*]
    4. Homicide (§ 172) — Conspiracy—Evidence.
    In a prosecution for homicide alleged to have been committed in the furtherance of a conspiracy to organize in Texas an armed force to invade Mexico, personal property found on one of the conspirators at the camp ground, including a manifesto, battle ■ flag, bugle, guns, bayonets, dynamite, and other munitions of war, and testimony concerning where and what was found, was admissible to show the conspiracy and its purpose.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 372, 373; Dec. Dig. § 172.]
    5. Homicide (§ 172) — Evidence—Incidental Oeeense — Subsequent Action.
    Where decedent was killed as incidental to a conspiracy to organize in Texas an armed force to invade Mexico in order to prevent a discovery of the conspiracy, which did not terminate until the conspirators’ arrest, evidence of all that took place and what each of the conspirators said from the time of their discovery at their rendezvous and until they were arrested was admissible, in a prosecution against each of them for the homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 372, 373; Dec. Dig. § 172.]
    6. Cbiminal Law (§ 517*) — Evidence—Concession.
    In a prosecution for homicide alleged to have been committed in pursuance to a conspiracy to organize in Texas an armed force to invade Mexico, evidence that, on the arrest of one of the conspirators by soldiers and posse, he told them where the others could be found, and that they were found there, was not objectionable as a confession made to officers after arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig.,§§ 1146-1156; Dec. Dig. § 517.]
    7. Criminal Law (§ 1169) — Appeal—Rulings on Evidence — Prejudice.
    Where deceased was killed in furtherance of a conspiracy to form in Texas an armed force to invade Mexico in order to prevent discovery of the conspiracy, accused, on trial for the homicide, was not prejudiced by the introduction of a hat worn by deceased at the time of the killing, a rope with which his hands were tied behind him, and a belt with which a load was fastened on him after he had been captured by the conspirators and while he was forced to pack material for them until he was killed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    8. Criminal Law '(§ 1166%") — Conspiracy-Trial — Codeeendant Brought into Court Manacled.
    Where accused, as member of a company illegally organized in Texas to invade Mexico, was on trial for the killing of a deputy sheriff as an incident to the conspiracy to prevent discovery, and the other conspirators were only captured after having fired at the sheriff and another deputy and also attempting to resist the posse and a company of United States soldiers, defendant was not prejudiced because certain of the alleged co-conspirators were brought into the court room during the trial of accused manacled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    9. Criminal Law (§ 1038) — Appeal — Instructions — Objections.
    Objections to a charge made for the first time in thei motion for a new trial cannot be .reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2640; Dee. Dig. § 1038.]
    10. Homicide (§ 269) — Conspiracy — Evidence.
    In a prosecution for homicide, evidence held sufficient to justify submission to the jury of the question of a specific conspiracy to take the life of decedent, though the preponderance of the evidence indicated that he was killed as an incident to a conspiracy to commit another offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 563; Dec. Dig. § 269.]
    Davidson, J., dissenting.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.'
    Miguel P. Martinez was convicted of murder, and he appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of murder, and his xiunishment assessed at 12 years’ confinement in the state penitentiary.

This is a companion case to those of J. A. Serrato (171 S. W. 1133),' Lino Gonzales (171 S. W. 1146), and Jesus Gonzales (171 S. W. 1149), heretofore decided by this court, but not yet officially reported. In this case there is this difference between it and those heretofore decided: Appellant did not testify, and of course his connection with the conspiracy is not admitted, nor is the object and purpose of the men banding themselves together.

To show that he was a member of the armed band found on Capones creek, the state proved that, when Officers Ortiz and Buck were captured by Capt. Rangel and his men, appellant was present and was one of the men who assisted in their capture, having a drawn gun in his hands; that he was present at the time when Sheriff Gardner and Marshal White were fired upon; that he was present when Buck and Ortiz were tied and loaded down as pack horses; that he was one of the guards who accompanied Buck and Ortiz to the place where Ortiz was killed; that he went with those who were guarding Buck some 40 yards away when Ortiz was killed: that he continued with Rangel and his men until Buck was rescued, and continued with them until finally they were captured, being one of those engaged in the battle with the posse and soldiers at the time of the capture. While no one can say specifically they saw him fire a shot, yet he was in company with those, some dozen or more of whom were shooting at the posse and soldiers. This authorized a finding that he was a member of the company, in the absence of any testimony to the contrary. In the other cases, as hereinbefore stated, the men on trial took the stand and testified they had banded. together to go to Mexico and engage in armed rebellion.

The defendant did not do so in this case; consequently the state had to make’ other proof showing the object and purpose of the band of men, and whither they were bound. Cline, clearly by all the testimony shown to be a member of the company, separated from the others a short time before their arrest, and he was the first one arrested. When arrested there was found on his person a manifesto, which, translated into English, reads as follows:

“Mexicans: The board of organization of the Mexican Liberal Party views with complacency your efforts to place in practice the high ideals of political, economical and social emancipation, whose supremacy throughout the world will put an end to that already sufficiently prolonged struggle between man and man, which has its origin in the inequality of riches, which emanates from the principle of private ownership of property.
“The abolishment of that principle signifies the annihilation of all institutions, political, economic, social, religious and morals which generates the gaseous atmosphere within which are asphyxiated free initiative and the free association of mankind, who see themselves forced, in order to survive, to engage in deadly competition, from which those who emerge triumphant are not the good, neither the most unselfish nor the best endowed, physically, morally and intellectually, but the most astute, the most egotistic, the ieast scrupulous, the most- hard-hearted, those who place their personal welfare above every consideration whatsoever of human solidarity and of human justice.
“Without the principle of private ownership of property, there is no reason for the existence of a government, necessary only to keep within bounds the disinherited in their complaints or in their rebellion against the deforciants of social riches; nor the church reason to exist whose exclusive object is to extrangulate in man the innate rebelliousness against oppression and exploitation, through preaching about patience, resignation and humility, stifling the cries of the most powerful instincts, and fruitful with the practice of immoral penances, cruel and hurtful to the health of persons, and so that the poor may not aspire to the joys ofi earth and constitute a danger to the privileged of the earth, promise to the humblest, to the most resigned, to the most patient, a heaven which swings in the infinite space beyond the visible stars.
“Capital, authority, clergy, here you have the somber trinity which makes of this beautiful world a paradise for those who have succeeded in grasping in their claws, by their astuteness, violence and crime, the product of hard labor by' the sweat of the brow, by blood, by tears and sacrifices of thousands of generations of workmen and a hell for those who with their hands and their intelligence cultivate the soil, move machinery, construct houses, transport products, thus leaving humanity divided into two social classes, with interests diametrically opposed: The capitalist and the laborer. The class which possesses the land, the machinery of production and the means of transportation for the rich products, and the class which reckons only with his hands and his intelligence for his support.
“Between these two social classes there cannot exist any bond of friendship or fraternity, for the property holding class are always disposed to perpetuate the economic, political and social system, -which guarantees to them peaceful enjoyment of their plunder, while the working class makes efforts to destroy that iniquitous system, in order to install a medium on the earth, by which the land, the houses, the machinery of production and the means of transportation may become of common use.
“Mexicans: The Mexican Liberal Party recognizes that every human being, from the sole fact of having been born, have the right to enjoy of all and of each and every advantage which modern civilization offers, for those advantages are the product of the efforts and sacrifices of the working class of all ages.
“The Mexican Liberal Party recognizes that work is necessary for the maintenance of the individual and of society, and consequently everybody, with the exception of the aged, the maimed, the weakminded and the children, must dedicate themselves to produce something useful, so that they will be enabled to give satisfaction to their needs.
“The Mexican Liberal Party recognizes that the so-called right of individual property is an iniquitous right, because it subjects the greatest number of human beings to work and to suffer for the satisfaction and ease of a small number of capitalists.
“The Mexican Liberal Party recognizes that the government and the clergy are the support of the iniquitous capital.. Therefore the board of organization of the Mexican Liberal Party has solemnly declared war against authority, war against capital, war against the clergy.
“Against capital, authority and clergy, the Mexican Liberal Party has unfurled the red banner in the fields of action in Mexico, where our brothers are battling like lions, contending for victory against the hosts of the Patricians, or be it Maderistas, Reyistas, Vasquistas, Cien-tíficos and many others, whose only purpose is to elevate a man to the first magistracy of the country, to do business under his shadow, without any consideration for the entire mass of the population of Mexico, and all of them recognizing as sacred the right of individual property.
“In these moments of confusion so propitious for the assault against oppression and exploitation, in these moments in which the government crushed, unbalanced, vacillating, attacked on all sides by the forces of all the unbridled passions. by the tempest of all the appetites, whetted by the hopes of a proximate satiety, in these moments of anxiety, of anguish, of terror for all the privileged, compact masses of disinherited beings invade the lands, burn the titles to property, place the creating hands on the fertile soil and threatening with their closed fist all that which yesterday was authority, capital and church, they open the furrow, scatter the seed and await with emotion the first fruits of free labor.
“These are, Mexicans, the first practical results of the propaganda and the action of the soldiers of the people, of the generous supporters of our principles of equality, of our brothers who defy all imposition and exploitation with this cry, of death to all those above and of life and hope for those below; long live land' and liberty.
“The tempest increases in fury from day to day. Maderistas, Vasquistas, Reyistas, Científi-cos, Delabarristas cry out to you, Mexicans, to return to defend their tarnished banners, protectors of the privileges of the capitalist class. Do not listen to the sweet songs of those sirens, who desire to take advantage of your sacrifices to establish a government; that is, a new dog to protect the interests of the rich. Arise, everybody, but only to carry out to a finish the expropriation of the property which the rich retain.
“The expropriation must be carried out to a finish by blood and fire during this grandiose revolution, as our brethren have done and are doing; our brethren, the inhabitants of Morelos, South of Puebla, .Michoacan, Guerrero, Veracruz, North of Tamaulipas, Durango, Sonora, Sinaloa, Yucatan, Quintana Roo and in parts of other states, as even the very patrician Public Press of Mexico has had to acknowledge that the people have taken possession of the land without waiting for a paternal government until it design to make them happy, conscious that there is nothing good to be expected from governments and that the emancipation of the laborers must be the work of the workingmen themselves.
“These first acts of expropriation have been crowned with the most flattering of successes, but the limit must not be placed at taking possession of the land and implements of agriculture only.
“There must be taken possession, resolutely, of all the industries by the workingmen employed therein, obtaining in this manner that the land, the mines, the manufacturers, the workshops, the smelters, the cars, the railroads, the ships and all the warehouses of every kind and the buildings remain in the possession of all and every one of the inhabitants of Mexico without distinction of sex.
“The inhabitants of each locality in which such an act of supreme justice has been carried out have nothing else to do but to come to an agreement between themselves that all the effects that are found in the stores, warehouses, granaries, etc., be carried to a place of easy access for everybody where men and women of good (will) repute, shall make out a minute inventory of everything that has been gathered together, in order to calculate the duration of the stock on hand, having in view the needs and the number of the inhabitants who have to make use of it, from the time of expropriation until in the fields are raised the first crops, and in the other industries are produced the first products.
“The inventory made, the workingmen of the different industries will understand each other fraternally in order to regulate production, so that during this movement no one shall lack for anything and only those will die of hunger who do not desire to work, with the exception of the aged, the maimed and the chidren, who shall have the right to the enjoyment of everything. Everything produced shall be sent to the general storehouse of the community, from which ail shall have the right to take all that they may need according to their wants, without other requisite than to exhibit a badge that he is working in this or that industry.
“As the aspiration of man is to have the greatest number of gratifications with the least effort possible, the most adequate means to obtain that result, is work the land and the other industries in common. If the land is divided and each family takes a portion, besides the grave danger which is run of once again dropping into the capitalist system, for there will not be a lack of astute men, or who have habits of saving, who will succeed in having more than others and be enabled in time to exploit their fellowmen— besides this grave danger, the fact stands out, if a family cultivates a piece of land, it will have to. work as much or more than is done at present under the system of individual property to obtain the same meager result which is obtained at. present, while, if the land is united and worked in common, the farmers will work less and produce more. Of course there must not be a lack of land, so that every person can have his house and a good lot to dedicate it to the uses most agreeable to him. The same as is said of the work in common of the land can be said of the work in common of the manufacturers, workshops, etc., but each one according to his temperament, according to his tastes, according to his inclinations, may choose the kind of work that best suits him, so that he produces enough to cover his needs and not be a charge upon the community. Working in the manner set forth (that is, following immediately after the expropriation, the organization of .production, free of owners, and based on the needs of the inhabitants of each locality), no one will be in want of anything, notwithstanding the armed revolution, until this movement being ended with the disappearance of the last aristocrat and of thc-last authority, or its agent, the law, the support of the privileged class, broken in pieces and everything placed in the hands of those who work, we will embrace each other with a fraternal embrace, and will celebrate with prnns of joy the installation of a system which will guarantee to every human being food and liberty.
“Mexicans: For all this, the Mexican Liberal Party struggles, for this a band of heroes shed their generous blood, who battle neath the red flag, with the portentous cry of land and liberty.
“The Liberals have never unbuckled their weapons, notwithstanding the treaties of the traitor Madero with the tyrant Diaz, and notwithstanding also of the attempts of the aristocrats to fill their pockets with gold, and this has been so, because we, the Liberals, are men convinced that political liberty is not of advantage to the poor, but to the hunters of offices, and our object is not to obtain offices nor distinctions, but to take away all from the hands of the aristocrats, so that everything shall remain in the hands of the workingmen. The activities of the different political bands which at the present time dispute amongst themselves the supremacy in order that the one which triumphs to do exactly the same as the tyrant Porfirio Diaz did, because no man, however well disposed he may be, can do anything in favor of the poor class when he finds himself in power. That activity has produced chaos, which we, the disinherited, must take advantage of. The especial circumstances in which the country is found in order to put in practice without loss of time, on the spot, the sublime ideals of the Mexican Liberal Party, without waiting for peace to be declared to carry out the expropriation, for by that time the stock of goods in the stores, granaries, •warehouses and in other depositories would have been exhausted, and at the same time, by reason of the state of war in which the country has been, production had been suspended, hunger would be the result of the struggle, while, carrying out the expropriation and the organization of the free work during the revolution, neither would there be a lack of the necessities of life in the midst of the movement nor afterwards.
“Mexicans: If you want to be free at once, do not fight for any other cause that is not of the Mexican Liberal Party. All offer you political liberty after triumph. We, the Liberals, invite you to take the land, the machinery, the means of transportation and the houses right now, without waiting that any one to give them to you, without waiting for the law to decree such a thing, because the laws are not made for the poor but for gentlemen with dress suits, who take good care not to make laws against their own caste. It is our duty, for us, the poor, to work and struggle to break the chains which make slaves of us. To leave the solution of our problems to the educated and rich classes is to place ourselves voluntarily in their claws.
“We, the plebeians, we, the ragamuffins, we, the hungry, we, who have not even a stone upon which to recline our head, we, who live tortured by the uncertainty of obtaining a piece of bread for the morrows for our wives, and our children, we, who, having reached old age, are ignominiously discharged, because we can no longer work, behooves us to make strenuous efforts, innumerable sacrifices, to destroy to the very foundation the structure of the old society, which has been up to the present an affectionate mother for the rich and the rascals and a coldhearted stepmother for those who work and are good. All the evils which affect the human race arise from the present system, which forces the majority of humanity to work and to sacrifice itself for a privileged minority, to satisfy all their needs ahd even all their caprices, living in idleness and in vice. And the evil would be less if all the poor had their work assured, as the production is not arranged to satisfy the needs of the laborers, but to leave profit to the patricians. These contrive to produce no more than they calculate can be expended by themselves, and from this result the periodical shutting down of industries or the reduction of the number of employes. This also arises from the fact of the perfection of machinery, which substitutes with advantage the hands of the employés.
“To put an end to all this, it is necessary that the laborers take in their hands the land and the machinery of production and be the ones to regulate the production of riches, tempered to their own needs.
“Robbery, prostitution, assassination, incen-diarism, swindling, are the results of the system which places men and women under conditions so as not to perish or hunger,- forced to take what they need where found, or to become criminal, for in the majority of cases, although there may exist the greatest desire for work, no work is to be found, or is so poorly paid that the salary does not cover the most pressing needs of the individual or family; besides, the long hours of work under the present system of the capitalists and the condition under which they are affected, in a short time, undermines the health of the laborer and even ends his life in the catastrophe which takes place in the work shops, which has no other origin in the disdain with which the governing class look upon those who sacrifice themselves for them.
“The poor, irritated by the injustice of which he is the object, angry at the ostentatious display of luxury paraded before his eyes by those who do nothing, beaten by the ‘cop’ (policeman) on the streets for the crime of being poor, forced to employ his hands in work not to his liking, poorly paid, despised by all those who know more than he does, or who, by reason of having money, believe themselves to be superior to those who have nothing, faced by an expectant sad old age, the death of an animal, driven out of the stable as useless, worried by the possibility of being without work from one day to another, forced to look upon even those of his own class as enemies, because he does not know which one of them may go to hire himself for less than he is earning, it is natural that under these circumstances there develops in the human being anti-social instincts, and be it crime, prostitution, disloyalty, the natural fruits of the old and odious system which we want to destroy, even to its deepest roots, in order to create a new one, of love, of equality, of justice, of fraternity, of liberty.
“Arise all as one man, in the hands of all is tranquility, well-being, liberty, satisfaction of all same appetites, but let us not allow ourselves to be led by directors; that each one be his own master; that everything be arranged by the mutual consent of unhampered individuality. Death to slavery; death to hunger; long live land and liberty.
“Mexicans: With the hand placed over the heart and with a peaceful conscience, we make you a formal and solemn call that evez-y one of you all, men and women, adopt the high ideals of the Mexican Liberal Party. As long as there are rich and poor, governments and governed, there will not be peace, nor is it to be desired that there should be, because that peace would be based on inequality, political, economic, and social of millions of human beings, who suffer hunger outrages, prison and death, while a meager minority enjoy all sorts of pleasures and liberties for doing nothing.
“To the struggle; to expropriate with the idea of benefit for all and not for a few, that this war is not a war of bandits, but of men and women who desire that all be brethren and enjoy as such the goods which nature cheerfully offers to us, and the hands and intelligence of man have created, with the single condition that each one shall dedicate himself to a work really useful. Liberty and well-being are within reach of our hands. The same efforts, the same sacrifice that it costs to elevate a goveimor (that is, a tyrant), costs the expropriation of the goods which the rich retain. To choose, therefore, a new governor, a new yoke, or the redeeming expropriation and the abolishment of all impositions, political, religious or from any. other order whatsoever.
“Land and Liberty.
“Given in the city of Los Angeles, state of California, United States of America, this the 23d day of the month of September, 1911.
“Ricardo Elores Magon.
“Librado Rivera.
"Anselmo L. Figueroa.
“Antonio de P. Araujo.
“Enrrique Flores Magon.
“To the Workmen in General.
“Every person who is in accord with the principles for which the Mexican Liberal Party struggles is cordially invited to help in the manner most agreeable to himself, in order to obtain the triumph of our principles. All remittances of money and all correspondence must be directed without fail to Manuel G. Garza, 914 Boston Street, Los Angeles, California, U. S. A.
“The success of the revolution which is being developed on Mexican soil depends in a great measure on the generous help with money loaned to the Mexican Liberal Party. No working man should hesitate to send his contribution for the encouragement of this grand struggle against graft and tyranny. If the poor do not furnish their share for the triumph of the interests of their class, they cannot expect that the rich will do anything for them. If the poor dazzled by the gold of the patricians and enroll themselves under some banner of the patrician, they will be food for the cannon during the war, and food for exploitation, for jail and barracks in time of peace. The poor should unite resolutely with the Mexican Liberal Party, and make the declaration sent out on the 23d of September their own. There is no other party which fights with the sincerity of the Mexican Liberal Party. Hurl far from you, disinterested ones, all those who speak to you to remedy your condition through the law; they are your worst enemies, for knowing that the law in all times and in every place is always on the side of the rich, they hold it out to you as the shield of the weak, while in reality it is the yoke of which the high class make use of to keep down in submission the poor. Fix your minds attentively on this. All those who want you to elevate them, tell you to help them, and that they in turn will make your happiness after the victory.
“Porfirio Diaz spoke in that manner to the public when he was a revolutionist. Francisco L. Madero spoke to you in like manner. All the governors which we have had since our independence from Spain up to the present time promised the same thing, and not one of them could carry it out.
“No government will be able to carry out the promises of welfare and of liberty made to the poor, because from the simple fact of being a government it is obliged to safeguard the goods of the rich. Therefore we must not confine our own welfare to a government. Welfare will be acquired disavowing the right of individual property, and taking possession of the land for all, men and women, and the means of production and consumption. This ought to be done before there is peace, before some government becomes strong, because then it will be necessary to commence a new revolution to obtain it.
“It is in these moments when the government is weak that the poor ought to take possession of the lands and everything which, exists for the benefit of all. If it is not done to-day, after-wards it will be too late.”

This authorized a jury to find it was an armed force going into Mexico to engage in rebellion against the then established government; in fact, all government. In the camp and on one of the other men was found a flag, as described in this manifesto, bearing the words “Pardido Liberal” — land and liberty — also guns, bayonets, swords, dynamite caps, fuses, dynamite, etc. This testimony, with all the other facts and circumstances in evidence, will- support a finding that these men and all and each of them had organized under this manifesto, and were on their way to Mexico to engage in this armed rebellion, and this was their object and purpose. But appellant contends that much of this evidence was inadmissible, and especially the manifesto found upon Oline at the time of his arrest. If Cline was on trial, would any one question that this instrument found in his possession would be admissible in evidence against him as tending to show his object and purpose, and, if not, by what rule of law would it be inadmissible against a co-conspirator? The rules of law governing in conspiracy cases have been well established, and as said by a well-known writer:

“The conspiracy may, of course, be shown by direct evidence, and it is apprehended should be so proved if this character of evidence is attainable. Direct evidence is, however, not indispensable. Circumstantial evidence is competent to prove conspiracy from the very nature of the case, and the rule which admits this class of evidence applies equally in civil and criminal cases. In the reception of circumstantial evidence great latitude must be allowed. The jury should have before them every fact which will enable them to arrive at a satisfactory conclusion. And it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts shown have some bearing upon, and tendency to prove, the ultimate facts at issue. But much discretion is left to the trial court, in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. If it be shown.' that several have combined together for the same illegal purpose, any act done by one of them in pursuance of the original concerted plan, and with reference to the. common object, is, in the contemplation of the law, the act of all, and therefore proof of such act will be evidence against any of the others who were engaged in the conspiracy, and any declaration made by one of the parties in the absence of the othei'S during the pendency of the illegal enterprise is not only evidence against himself but against all the other conspirators who, when the combination is proved, are as much .responsible for such declarations and the acts to which they relate as if made and committed by themselves.”

These rules have been approved in all the text-books and in the following cases in our own court: Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; McFadden v. State, 28 Tex. App. 241, 14 S. W. 128; Clark v. State, 28 Tex. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817; Phillips v. State, 26 Tex. App. 228, 9 S. W. 557, 8 Am. St. Rep. 471; Williams v. State, 24 Tex. App. 17, 5 S. W. 655; Kennedy v. State, 19 Tex. App. 618; Pierson v. State, 18 Tex. App. 524; Post v. State, 10 Tex. App. 598; Avery v. State, 10 Tex. App. 199; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; and the authorities cited in the Serrato Case, 171 S. W. 1133, and Gonzales Cases, 171 S. W. 1146, 1149. Again it has been said:

“Where the guilt of a party depends upon the intent, purpose, or design with which an act is done, or upon his guilty knowledge thereof, collateral facts in which he bore a principal part may be examined into for the purpose of establishing such guilty intent, design, purpose or knowledge. It is sufficient that such collateral facts have some connection with each other as a part of the same plan or as induced by the same motives, and it is immaterial that they show the commission of other crimes. The evidence in a conspiracy is 'Wider than perhaps in any other ease. Taken by themselves, the acts of a conspiracy are rarely of an unequivocally guilty character, and they can only be properly-estimated when connected with all the surrounding circumstances. Although the fraudulent and corrupt combination, the common design, is the essential element, it is not necessary to prove that defendants came together and actually agreed in terms to have this common design and to pursue it by common means and so carry it into execution. Such proof can seldom be made, and therefore is not required. It is sufficient to justify the jury in finding a conspiracy if it is shown that the persons charged with conspiring pursued by their acts the same object, often by the same means, one performing one part of an act and the. other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing.” Cyc. vol. 8, p. 684; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Smith v. State, 21 Tex. App. 107, 17 S. W. 552.

It was incumbent upon the state to establish a conspiracy to do some unlawful act by those gathered at Capones ranch to hold each and every one of them liable for the act of those four who actually fired the fatal shot into the body of Ortiz, unless the testimony would show a specific conspiracy participated in by appellant to kill Ortiz. And, if it did not show a specific conspiracy to kill 'Ortiz, then to show the killing of Ortiz was incident to and grew out of the conspiracy to do the unlawful act, and which would in law be considered as embraced in the contemplation of all of them. In this case such evidence was dependent upon circumstantial evidence, and as is said by this court in Smith v. State, 21 Tex. App. 107, 17 S. W. 552:

“The ancient doctrine that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other is now exploded. The rule as it now exists is stated in the case of Cox et al. v. State, 8 Tex. App. 254 [34 Am. Rep. 746]', as follows: ‘Ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy should itself be first established prima facie and to the satisfaction of the judge of the court trying the cause; but this cannot always be required. It cannot well be required when the proof depends upon a vast amount of circumstantial evidence — a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and _ the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.’ ”

And under this rule of law it is apparent that the court did not err in admitting those things found on Oline at the camp ground — the manifesto, the battle flag, the bugle, the guns, bayonets, dynamite, other munitions of war, etc., in evidence, and testimony in regard to where found and what was found. This was most cogent testimony to show the conspiracy and object and purpose of the conspiracy as originally formed and why the men had gathered together at this ranch: consequently bills of exception Nos. 5 and 6 present no error.

And as the conspiracy entered into did not terminate until the arrest of the defendants, there was no error in admitting in evidence all that took place, and what each of the conspirators said from the time of their discovery on the ranch (and the kidnapping of Buck and Ortiz) until the arrest of the defendants, so bills of exception Nos. 3, 4, an'd 8 present no error. All this testimony was ruled properly admissible in the Serra-to and Gonzales Cases and Vasquez Case, 171 S. W. 1160, and this record only demonstrates that the court did not err in so holding. The manifesto more clearly shows the object and purposes and the means to be used to accomplish those purposes than did the testimony in the other cases; the flag, bugle, weapons, and ammunition and other indicia authorize a finding that they were organized under this manifesto, and their acts and conduct justify a finding that they, at the time of their capture, were on their way to Mexico to engage in this armed resistance. Another thing in this record manifests why Ortiz was, killed when he refused to go further. Buck at one time stopped and refused to go on, when he says the following took place:

“They taken me on and cussed and abused me all the time trying to make me hurry; made me walk over places I couldn’t walk and run their guns against me all day, until I was rescued. I packed the load and was going very well up to about 12 o’clock. They gave me water up to about 12 o’clock, and I didn’t get any water any more, and it was one of the hottest days we had last September. I got overheat. I got sick and I admit I gave out one time. I didn’t see that I could go any further. I told the captain and Oline that I couldn’t. I was sick and that I couldn’t go but that I had gone as far as I could; if they were going to kill me they would have to kill me; that I couldn’t go. They stopped and looked at me just a few minutes, stood around, and the captain told them to go on, told the bunch to go on. They walked about 30 steps, I suppose. I could see them from where I was lying. They stopped. He kept two men with him, when they walked off; he told them to take the packs off of the ‘son of a bitch.’ They taken the packs off of me. I was lying down on the ground. I just made up my mind • I wouldn’t walk another step. I knew what was coming off, so when they got those packs off of me I told them, 1 says, T will make one more walk,’ so I got up and made another walk. I walked about half a mile or three-quarters of a mile, and gave out again, had to stop again, and when I did they began to pull out some tobacco and all went to smoking; sat down and smoked. We had been there, I suppose, I don’t know— Q. Wait a moment, I will take that up again. In connection with your stop at that time, state all that was said, if there was anything said, in regard to their purport. A. Oh! When he taken these packs off. They told me when they were taking those packs off, he said, ‘Do you think we are going to leave you, you son of a bitch, to tell any yarns?’ I told him, I said, ‘I don’t know what you are going to do.’ Q. What did he say then? A. He said, ‘If you don’t go, we will kill you, you son of a bitch.’ ”

Mr. Ruck testifies that appellant was present when this scene took place, and was also present when a like scene occurred and Ortiz, refusing to walk, was shot to his death. They were not going “to leave them behind to tell any yarns” or in any manner interfere with the accomplishment of their purpose.

Alter Oline’s arrest he told the soldiers and posse where the others could be found, and they were found at the place Oline stated. This was not a confession of any character such as its admission is prohibited by the statute, and there was no error in admitting this statement of Oline, even though he was under arrest at the time he made it. They followed the information received and found appellant and the others at that point.

A hat, rope, and belt were introduced in evidence. The hat was shown to be the hat worn by Ortiz; the rope, the rope with which his hands were tied behind him; and the belt, the belt with which the lotid was fastened on him by the men at the time a pack horse was made of Ortiz — all of which were left on him when he was killed. Unless this was intended to aid in demonstrating the manner and mode of his death, and the position he must have been in at that time, we do not understand the object and purpose of in-introducing these articles in evidence. However, the hat, nor the rope, nor the belt are shown to have any blood thereon, nor to have been other than an ordinary piece of rope and a belt; and if a witness should testify a man was tied, and tied with this rope and loaded down, and they buckled the load on him with this belt, we can see no objection to such testimony, unless there was something about the rope or belt which would be calculated to inflame the minds of the jury and cause them to assess more punishment than they otherwise would. Certainly such articles could have no bearing on whether or not a conspiracy had been formed, what the object and purpose of the conspiracy was, nor whether the killing of Ortiz or any other man, if he got in their way, was within the contemplation of the parties at the time the conspiracy was formed, nor prove injurious to appellant’s defense as made.

The only other bills of exception in the record relate to bringing into the courtroom the persons other than appellant jointly charged with killing Ortiz. In the bill it is not claimed that appellant was handcuffed, but it is alleged that his codefendants were handcuffed at the time they were brought into the courtroom, and their handcuffs removed in the courtroom in the presence of the jury. The objections stated are:

“I will state to the court that the defendant desires to take a bill of exception'to the bringing of the other defendants in the courtroom during the trial of this case. The further fact that they were brought into this courtroom in the presence of the jury handcuffed; that the handcuffs were taken off of the prisoners in the. presence of this defendant and the jury. We want .the bill to further show that this defendant filed and was granted a motion of severance and was entitled to be tried in that manner without bringing in the other parties, as the same is calculated to prejudice the rights of this defendant to a fair and impartial trial, as guaranteed under the statutes of this state. We want the bill to further show the matter was called to the court’s attention prior to the other defendants being brought into the courtroom, and that the attorneys. for defendant objected to their being brought into the courtroom. The fact of their being brought into the courtroom can be for no other reason than to prejudice the jury against the defendant’s rights and create in their minds the idea that he belongs to a gang of criminals.”

We cannot see how the bringing of the eodefendants into the courtroom could in the least tend to show whether or not appellant was a member of the company or joined them in a conspiracy, and whether or not he by his acts and conduct had rendered himself liable as a principal for the death of Ortiz. The mere presence of these other men would be no evidence of that fact, and if the testimony should show that each of the others, or some of them, were guilty of killing Ortiz, unless the evidence should also show that appellant was guilty, their presence would not show nor tend to show that fact. If the men were out on bond and they desired to attend the trial of their codefendants, the court could hardly exclude them, nor would it be proper to do so, if they behaved themselves. And how does the fact that they were under arrest change the attitude of matters? It is the first time (where he is not to be used' as a witness) we have heard it contended that the rhere presence of a co-defendant would work injury to the one on trial. The court gives as his reason for permitting them in the courtroom that they were needed for the purpose of identification. If the court had in mind the severe cross-examination of state’s witnesses in the Jesus Gonzales and other cases, we can readily understand why he thought it proper to have the others charged with the offense in the courtroom for identification, for in the Gonzales Case they had to be brought in. Buck and Gardner had never known the defendants until the day Ortiz was killed. They still claim not to know the names of each separately, but know the men and can point them out on sight, and Buck details the participation of each. But appellant insists that, if they were permitted in the courtroom, they should not have been brought in handcuffed together, and cites us to a number of cases wherein the trial courts are criticized for permitting the person on trial to be brought into the courtroom with handcuffs on him. But it will'be noticed in the bills in this case it is not contended that the appellant was brought into the courtroom with handcuffs on him, but only that his codefendants were brought in handcuffed, and released as soon as. they got in the courtroom. In all the cases cited by appellant it was a case where the person on trial himself was the one so brought into the courtroom, and not a codefendant who was not on trial. But, while the practice is condemned, yet in each of the eases the rule seems to be, as said in Powell v. State, 50 Tex. Cr. R. 592, 99 S. W. 1007, that it is not permissible to bring the defendant into the courtroom manacled, except in extreme cases. As the bill does not show that appellant was manacled, the bill presents no error, but, if he should have been, we could not, from the record before us, say the court had abused the discretion confided to him by law. The evidence in this case shows that a company of men had banded themselves together to go into a foreign state to engage in rebellion, to use no stronger term; that they kidnapped two officers of the law, murdered one of them while his hands were tied behind him and he was helpless, cursed and mistreated the other, and engaged in a pitched battle to prevent arrest, and only surrendered when several of them had been killed. These were the character of men the record discloses the court was dealing with, and if, in going to and from the jail with such prisoners, the court deemed it advisable to permit them to be handcuffed, we cannot say that it was an abuse of his discretion. This court never saw the men, or either of them, and knows nothing of their characteristics. We have hut the record of a body of armed men, going a|oout the country, in defiance of the law and' the officers, and, when approached by two officers, with drawn weapons they compel their surrender and murder one of them, while ñe is helpless, without any just cause or provocation, so far as this record or the records in the companion cases disclose.

At the time the charge was submitted to counsel for their inspection, but two objections were made thereto. The second one, that after the words “conspired and confederated” in the ninth paragraph the court, failed to follow with the words “to commit the offense,” was sustained by the court and the words inserted before the charge was read to the jury. The only other complaint is that the court erred in not instructing the jury the specific language of article 78 of the Code:

“Any person who advises or agrees to the commission of an offense, who is present When the same is committed, is a principal thereto, whether he aids or not in the illegal act.”

The court’s charge in paragraph 8 fully defines the law of principals as applicable to this offense, and this criticism presents no error.

Special charge No. 1 requested by appellant was embodied in the court’s charge as given to the jury, as was also appellant’s only other special charge. The complaints of the charge in the motion for new trial for the first time, and contained in the brief cannot be considered by us, as the law now is all objections to a charge shall be made at the time same is submitted to counsel for their inspection.

Appellant’s propositions of law that, if a conspiracy is not shown, statements, acts, and conduct of third persons are not admissible, and further that, if a conspiracy is shown, then proof of acts or declarations of co-conspirators, made in the absence of a defendant after the completion of a conspiracy, are not admissible in evidence, are sound, and we heartily approve the law as laid down by the authorities cited by him on those two propositions. But having held that the evidence authorized a finding by the jury that a conspiracy was formed, and that it continued until the time of their arrest, the authorities have no' application to this case. Neither can we sustain the contention that the evidence does not sustain a verdict under the law us given in charge by the court.

The contention that the court erred in authorizing a conviction if there was a specific conspiracy to take the life of Ortiz, if it had been desired to be complained of, the charge should have been objected to on that ground at the time the charge was submitted to counsel for inspection. But the contention there is no evidence to form the basis for such a charge in this record is not well founded. Appellant and the men jointly charged with him were gathered together in a pasture on a creek, where they had assembled arms and ammunition. Officers went there to make an investigation. Two of these officers were taken charge of by appellant and those with him; Buck saying:

A “bunch of men had their guns pointed at us; this man (appellant) being one of them. Some disarmed us and took us into camp; the others keeping their guns on us. Four or five said Ortiz was the man who put the officers onto them and had been helping the officers for several years and putting them onto the Mexican People, when Rangel walked around, called Ortiz a son'of a bitch, and said: ‘You will never help them again. You killed one of our comrades at Ashland, and you will never get to kill another one, nor never again get to help any officers.’ ”

It was not a great length of time until Ortiz was killed. It may be that the court thought this raised the issue of a specific agreement in which all present were participants to kill Ortiz for having killed one of their comrades at Ashland, and for having put the officers on to them, and if so, and this had been the finding of the jury, we would not disturb the verdict, but the impression made on our minds by the record is that the killing grew out of the general conspiracy, amxdy proven by all the testimony, and that it was incident to and so connected with said general conspiracy in a way that, if appellant was proven a party to the general conspiracy, it would be under such circumstances as to render him liable for the death of Ortiz equally with those who in fact fired the shots.

The judgment is affirmed.

DAVIDSON, J., dissents.


text:
    VASQUEZ v. STATE.
    (No. 3181.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    1. Homicide (§ 30) — Conspiracy — Parties Liable.
    All persons forming a conspiracy to march into a foreign country at all hazards and overcome all resistance, and arming themselves for that purpose, are equally principals in a murder committed by some of them in furtherance of the conspiracy.
    ■ [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. § 30.]
    2. Criminal Law (§ 772) — Instructions— Evidence — Issues and Theory.
    Where accused, tried for murder on the theory that it was committed by his co-conspirators in pursuance of a common design, testified that the co-conspirators acted independently in killing decedent, and that the killing was not incidental to the common design, failure to submit accused’s theory was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dee. Dig. § 772.]
    3. Criminal Law (§ 800) — Instructions— Definition of Words — Conspiracy.
    Where all the testimony showed a conspiracy between defendant and third persons committing a murder, and that the murder was committed in-pursuance of the common design, the court could refuse to define a “conspiracy”; hut where the testimony did not show conclusively a conspiracy, the court must .instruct on the subject, and clearly state what facts must be found to justify a conviction.
    [Ed. Note. — For other cases, -see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    4. Cexminal Law (§ 422) — Conspiracy—Acts and Conduct of Conspirators — Admissibility.
    Where a conspiracy is once shown, the acts of each of the conspirators are admissible against any one of them, provided the acts were done in pursuance of the conspiracy and in furtherance of the common design.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Leonardo L. Vasquez was convicted of crime, and he appeals.
    Reversed and remanded.
    R. W. Hudson and Magus Smith; both of Pearsall, John R. Storms, of Ft. Stockton, Edwin F. Vanderbilt, of San Antonio, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      Tor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   HARPER, J.

This is a companion case to that of J. A. Serrato (171 S. W. 1133), Lino Gonzales (171 S. W. 1146), and Jesus Gonzales (171 S. W. 1149), recently decided by this court. In the other three cases the evidence clearly showed a conspiracy had been entered into by and between all the parties to gather near Carrizo Springs, in Dimmit county, and that they did gather there, and that at that point there had been accumulated arms, ammunition, bayonets, dynamite, bugles, and other munitions of war; that the flag under which they were to fight was in their possession; and that it was the purpose and intent of the parties to invade the republic of Mexico- to engage in armed resistance to those in authority. By the facts and circumstances it was shown that, the conspiracy embraced an agreement to overcome all resistance to their unlawful enterprise, and that Candelario Ortiz was killed because it became necessary or seemingly necessary to do so in order to accomplish the purpose for which they had banded themselves together. The state’s evidence offered on the former trials fully supported all these contentions, but on this trial the state’s case was not so well developed. A number of the witnesses used in the other cases were not placed on the stand, and of those who were introduced as witnesses much of their testimony was for some reason omitted, and in many respects the record in this case is much more incomplete than on the trials of the other defendants. This defendant was not one of the men who fired the shots that killed Ortiz. He admits he entered into the agreement to invade Mexico) and was along with the company aiding and assisting in the furtherance of that common enterprise, but he denies emphatically that the killing -of Ortiz was embraced in the original agreement or conspiracy, and denies emphatically that he knew Ortiz was-going to be killed, or that he had been killed, until some time after the deed had been committed.

We want to say that in this record, and in the other records, the state’s testimony did not show that there was a conspiracy formed, or an agreement made, to take the life of any particular man, or to take the life of Ortiz, by the entire company. Their agreement or conspiracy, if it be so termed, was to march into Mexico at all hazards and overcome all resistance; armed themselves for that purpose; that Ortiz was killed by Capt. Rangel and three others, in the furtherance of this common design and purpose, and each and all members of the company thereby became liable therefor, it being the law that when persons combine to engage in a breach of the peace, with a general agreement to resist all opposition, and in the execution of the design a murder is committed by one or more of the parties, all of the company are equally principals in the murder. Motive of the individual on trial may be inferred from the nature of the design and character of the preparation. From the admitted purpose of the organization in this case, and the fact that they armed themselves with all character of implements calculated to inflict death, and taking the evidence as heretofore introduced, the jury would be authorized to find that the killing of Ortiz, or any other man who got in their way, was within the compass of the original agreement, and was an act directly incident to and grew out of the common design of all. And this is the theory that the cases of Serrato and the two Gonzales was tried on. However, from the record now before ns it is not apparent that this case was tried upon this theory, but, rather, the state seems to have tried this case upon the theory that there was a specific agreement or conspiracy entered into to kill Ortiz, and, to prove that, relies on the fact that when Buck and Ortiz were kidnapped and Rangel informed that Ortiz was the man who informed on them, that Rangel then said that Ortiz would report on no other person; that they would kill him; and other similar remarks. However, appellant denies hearing any such statement or hearing any such remarks, and says that he did not know that Ortiz was to be killed; that he was not present when he was killed, and did not know of it until some time thereafter, and when he learned of it he told the person informing him that it should not have been done, and if the state relied on a specific agreement to kill Ortiz, then the con-. verse of this proposition should have been submitted to the jury; that is, if appellant did not enter into such an agreement, and did not know that Ortiz was to be killed, and did no act in furtherance of that design, he would not be guilty. However, under the evidence, we think the Serrato and Gonzales Cases were tried upon the correct theory; and that is, all the company, as shown by all the testimony, had entered into a common design to commit an unlawful act —conspired to arm themselves and go from Dimmit county into Mexico to there engage in armed resistance to lawful authority, and embraced in this design was an agreement to overcome all opposition to the accomplishment of this design, and out of this common design the killing of Ortiz was a direct incident and grew out of it, rendering each and all of the parties who were along with Capt. Rangel at the time and engaged in the common purpose equally guilty with those who, in fact, fired the fatal shots, because, according to the evidence offered in behalf of the state in the Serrato and Gonzales Cases, it was evident he was killed to keep him from interfering with their common purpose—that is, to go to Mexico and engage in unauthorized warfare.

However, it is equally true that the testimony of this defendant, as did the testimony of the defendants in the other cases, tended to raise the issue that Ortiz may have been killed by Capt. Rangel and the three other men upon an independent motive, foreign to, and not incident to, the common design of all, and .in the Serrato and Gonzales Cases the court submitted that issue to the jury, instructing them that, if Ortiz was killed by one or more of the parties acting independently of the common design, and not in furtherance thereof, and that the killing was not directly incident to, and grew out of, the common design, and without participation by him in the intent and design influencing those in committing the crime, he would not be guilty, and, if the jury had a reasonable doubt on that issue, they should give the defendant the benefit of such doubt and acquit him. In the charge in this case no such instructions were given; in' fact, defendant’s defensive theory, whether the state relied on a specific design formed in the minds of all to kill Ortiz, or relied on the theory that they had all entered into a common design to commit an unlawful act, and the killing of Ortiz grew out of it, was not submitted to the jury, and this will, of necessity, work a reversal of the case.

The complaint that the court in his charge should have defined “conspiracy” we do not think is well taken under the evidence in this case; for the defendant By his testimony and all the testimony in the case, shows that a concerted purpose, and design was entered into by and between all the parties named in the indictment. If the testimony did not show conclusively there was such conspiracy, then the court should have instructed the jury that he would not be bound by the words, acts, and conduct of the other parties when he was not present, unless they believed the defendant had entered into a conspiracy or a combination in which two or more persons had agreed to commit a criminal or unlawful act, but, if they found beyond a reasonable doubt such combination had been formed and defendant was a party thereto, then the acts and conduct of each, and all the parties up to the time of their arrest could be considered by the jury in passing on the' guilt or innocence of defendant.

The rule is that, when a conspiracy is once shown, then the acts and conduct of each and all the conspirators are admissible in evidence against any one of them on trial, said or done during the continuance of .the conspiracy and until its final termination. In this case the end sought by the conspiracy was not accomplished, but frustrated by arrest, consequently the acts and conduct of the parties in furtherance of the common design are admissible up until the time of their arrest. Of course, as hereinbefore stated, if the conspiracy is not admitted fact, then “conspiracy” should be defined, and the issue submitted as to whether or not there was such conspiracy, and the jury properly instructed in regard thereto, and it might be best for the court in these cases to define “conspiracy,” and instruct the jury that, before they would be authorized to' find the defendant guilty as a principal they must believe beyond a reasonable doubt that defendant entered into a conspiracy with Captain Rangel and others to arm themselves to invade Mexico for. an unlawful purpose, and that, in pursuance of such common purpose and design, Ortiz was killed, and that such killing was directly incidental to, and grew out of, the common design, and was committed in furtherance of the common purpose, even though at the time of the homicide some of them were at such distance as to be out of view; and then instruct them the converse of the proposition, that if the causes leading to the homicide had no connection with the common object, and was not committed in pursuance of the common purpose, then those not participating in the killing would not be guilty.

Our views are so fully expressed in the Serrato and two Gonzales Cases, recently decided, we do not deem it necessary to further discuss the questions herein raised, but refer the trial court to those cases and the law as herein stated for his guidance on another trial of this case.

On account of the failure of the court to submit appellant’s defensive theory in any manner, the judgment is reversed, and the cause remanded.

DAVIDSON, J. I agree to the conclusion,, but not all the reasoning.