author: I-IAKPER, J. DAVIDSON, J. HARPER, J.

text:
    ESPINOZA v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    On Motion for Rehearing, April 1, 1914.)
    1. Witnesses (§ 48) — Competency— Conviction of Cbime.
    Under Acts 83d Leg. c. 7, providing by section 2 that, where the jury recommends a suspension of sentence, neither the conviction nor the judgment entered thereon shall become final except under section 4, which provides that, if sentence shall be pronounced thereafter, the judgment shall then become final, a witness who had pleaded guilty of assault to murder, but whose sentence had been suspended was not incompetent as a witness as being a convicted criminal.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. § 48.]
    2. Criminal Law (§ 448) — Evidence—Opinion or Facts — Wounds.
    Testimony that a wound in the back of deceased' could not have been made with the knife found near, in connection with the act of the witness in taking the knife and finding it so broad that it could not enter the wound, was a statement of a fact, and not an expression of an opinion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    3. Criminal Law (§ 463) — Opinion Evidence-Cause op Death.
    Witnesses who had tried to ascertain which was the fatal wound, by probing and examining the wounds, only one of which entered a vital part, after detailing the facts of such examination to the jury, might give their opinions as to which wound caused death.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1052; Dec. Dig. § 463.]
    4. Criminal Law (§ 459) — Opinion Evidence — Cause of Death — Kind of Weapon.
    Under such conditions, they might also give their opinions as to the kind of instrument used in making the wounds.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1048-1050; Dec. Dig. § 459.] .
    5. Homicide (§ 5) — Trial—Issues.
    In the trial of an accomplice to murder, where the evidence was that the wounds in front and those in the back were made by persons acting together, it was immaterial whether those in front or one in the back was the fatal wound.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 7-10; Dec. Dig. § 5.]
    6. Criminal Law (§ 855) — Trial—Question by Juror.
    That one of the jurors asked why the defendant did not testify, and was promptly told that he could not consider that, without further remarks, presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Qent. Dig. §§ 2048-2053; Dec. Dig. § 855.] . '
    On Motion for Rehearing.
    7. Homicide (§ 250) — Sufficiency of Evidence.
    Evidence in a trial for murder held to sustain a conviction.
    [Ed. Note. — Eor other eases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig.' § 250.] •
    8. CRIMINAL Law (§ 59) — Parties to Oe-eenses — ‘ ‘Principal. ’ ’
    All persons are principals who, being present, act together in the commission of an offense, and, when it is actually committed by one, others present and knowing the unlawful intent and by acts aiding are principals; but mere presence at a time and place where another commits an offense will not make one a principal, without knowledge of the unlawful intent and some act in aid or encouragement thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.

    For other definitions, see Words and Phrases, vol. 6, pp. 5552-5557; vol. 8, p. 7763.]
    9. Criminal Law (§ 761) — Instructions— Assumption oe Facts — “Accomplice.”
    In a trial'for murder by cutting or stabbing, where a witness testified that he engaged in the fight and cut deceased, showing a guilty participation on his part, and that he had been indicted and convicted of assault to murder, and that defendant stood in position to inflict the wound in the back, but that witness did not see him inflict such wound or inflict it himself, an instruction to acquit, unless defendant was present and aided and abetted in the killing or encouraged the witness in doing so as a principal, was not erroneous, as assuming the fact that witness was an accomplice in law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.

    For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.]
    Davidson, J., dissenting.
    Appeal from District Court, Medina County ; K. H. Burney, Judge.
    Francisco Espinoza was convicted of murder, and he appeals.
    Affirmed.
    Leonard Brown, of San Antonio, and Elmer De Montel, of Hondo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For 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

   I-IAKPER, J.

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

The first objection is to the action of the court in permitting Andres Romero to testify. Andres Romero was indicted, charged also with the commission of the offense. The state’s theory was that the fatal wound was inflicted by appellant by stabbing deceased in the back. There was evidence that Romero stabbed deceased also in the front. Romero pleaded guilty of assault to murder, and his punishment was assessed at two years’ confinement in the state penitentiary, but, upon the finding and recommendation of the jury, his" sentence was suspended, and none has been pronounced against him. Appellant contends that this conviction rendered him incompetent as a witness. Under the first suspended sentence law passed, if it had been sustained, appellant’s contention would be sound. Snodgrass v. State, 150 S. W. 162, 41 L. R. A. (N. S.) 1144. But this law was held- unconstitutional on account of the other provisions, and, in re-enacting the law, or passing the second suspended sentence act, the act so changed the wording of the law as not to render the judgment a final judgment. Acts 33d Leg. p. 8. In section 2 it is provided that, in cases where the jury recommends a suspension of the sentence, neither" the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided by section 4. In section 4 it is provided that, if thereafter sentence shall be pronounced under the conditions named in the law, the judgment shall then become final, evidencing clearly the intent and purpose not to make the judgment final until sentence is pronounced.

In the next two bills objection is made to a portion of the testimony of Peter Hoag. He testified: “I am justice of the peace of precinct No. 3 of this county. I was called upon to view the body of a dead man in May of this year; that was at Chris Sehuchart’s ranch. I found a dead man there in the road, whose nam’e I think was Munoz, Pe-tronilo Munoz. He was lying in the center of the road, I couldn’t tell how far from the saloon; it was a moonlight night, but the saloon was closed when we got there; it might have been 20 or 30 yards from the saloon. I found stabs on the dead man. He was stabbed in here (indicating); he had some cuts on his arm; he had a stab on his shoulder, right shoulder, cut right below his shoulder blade; cuts were in his right arm; then he had one cut up here on his head. The stab in the back was under the right shoulder blade; that seemed to me to be a straight stab. As to what caused the death of the man, I guess it was the stab from behind, here (indicating), the stab wound in the shoulder; that is what caused death, in my opinion. (Knife is shown witness.) I found that knife there on the ground near the body. I examined the wound here (indicating) and the one behind here (indicating), and I took that knife and probed it, to see if they were made with the same knife, and it showed it was a different knife, because the cut was very small. I took this knife and probed it, and the point of this knife didn’t go in very far, down about this deep (indicating).”

It -is objected that the statement that the wound in the back could not have been made with the knife found on the ground is but the expression of an opinion. When it is shown that he took the knife and it was so broad that it could not be made to enter the wound in the back, this is not an expression of an opinion, but is the statement of a fact; as is also the statement that the wound in the back' could not have been made with this knife, for he also tried it in this wound. It is also claimed that the statement: “As to what caused the man’s death, I guess it was the stab from behind; that is what caused death” — is but an expression of an opinion of the witness,' and should- not have been admitted.

L. W. Burrell testified he was constable and went there with the justice of the peace, and saw the deceased lying there. He says: “We examined the body; took down his clothes and looked. It had a cut in there, in the right side; then he had some little stabs, cuts, slashes in the arm and some on his head. We turned him over, and I found another stab in the back, and I believe that is the wound that killed him. As to my opinion as to the cause of the man’s death, it was the stab in the back. I did not find any more wounds in the back. As to the size of the stab wound in the back, it was a tolerably small stab; it was a small wound, but it was very deep, though. I stuck my finger in it at least that deep and pulled on it and it would suck wind, and I know by that that it must have went into the hollow; I made that experiment. I saw the judge take the knife there (in evidence) that evening in my presence and try to put it in the wound, and it didn’t fit. I tried it myself the next morning, and it wouldn’t go in.”

The same objection that was made to the testimony of the justice of the peace, as to which wound caused death, is also made to this witness’ testimony. By reading the testimony, it is seen that the wounds other than that in the back under the shoulder were shallow wounds, while the one in the back was probed and found to have penetrated the hollow, and the expression that, in their opinion, this wound is the one that caused the death of Munoz is based upon facts which they detailed before the jury; in other words, the expression of the opinion is but the crystallization of the facts — the result of the- wounds found on the body — which was the fatal wound ascertained by probing and examination of the wounds, only one having been found to have entered a vital part. In the Encyclopedia of Evidence the rule is said to be, if the testimony should be held to be but the expression of the opinion of Justice 1-Ioag and Constable Burrell: “The admissibility of the opinions and conclusions of nonexperts rests, as has been judicially declared, upon three necessary conditions which will be considered seriatim hereinafter, as follows: (1) That the witness detail to the jury, so far as he is able, the facts and circumstances upon which his opinion is based, in order that the jury may have some basis by which to judge of the value of the opinion; (2) that the subject-matter to which the testimony relates cannot be reproduced and described to the jury precisely as it appeared to the witness at the time; and (3) that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding.” Volume 5, p‘. 657. This rule has been adopted and followed by this-court. Jackson v. State, 29 Tex. App. 458, 16 S. W. 247; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Clark v. State, 28 Tex. App. 189;. 12 S. W. 729, 19 Am. St. Rep. 817; Thompson v. State, 19 Tex. App. 593; Powdrill v. State, 62 Tex. Cr. R. 446, 138 S. W. 114;. Bennett v. State, 39 Tex. Cr. R. 639, 48 S. W. 61; Martin v. State, 40 Tex. Cr. R. 666, 51 S. W. 912. When a man is killed it is always a matter of opinion or deduction as to-what was the cause of his death, and it has always been held in this state,, where a person views the body and examines the wound- or wounds, he- may give his opinion as to the-kind of instrument used in making the-wounds, and the cause of death.

In this case we think it an immaterial, question as to whether the wound in front or the wound in the back caused the death of deceased; for the evidence -would clearly show that the wounds in front and those im the rear were made by persons acting together, and it would be immaterial whether the one in the front or the other one in the rear caused deceased’s death. The court instructed the jury Andres Romero was an accomplice in law, and they could not convict upon his testimony alone, and it is made clear by the testimony that Romero inflicted the wounds in front with one knife, while a wound in the back was inflicted with 'another, and appellant is placed at deceased’s side or back by the testimony.

It is shown that one juryman asked' why the defendant did not testify, when he-was promptly informed that he could not consider that, and there were no further remarks about the matter, and no discussion whatever relative to it. This presents no error. .

The court’s charge on principals is in language frequently approved by this court, where the defendant was present, and the-' facts and circumstances show that he participated in the unlawful acts. And, .the court having given appellant’s special charge No.. 2, there was no necessity to give the other special charge requested. In addition thereto, it would have been on the weight to have-been given the testimony.

The evidence supports the verdict, and the-judgment is affirmed.

DAVIDSON, J.

(dissenting).

Appellant: was convicted of murder in the second degree ; his punishment being assessed at five years’ confinement in the penitentiary.

The evidence for the state is practically that testified by Romero. About the 17th or 18th of May, 1913, a number of Mexicans-were gathered at the Schuchart saloon. They were drinking and had been friendly to the-time of the difficulty, or a few moments preceding it. Hornero says Mr. Schuchart ordered them out of the saloon and they left. Himself, appellant, Yasquez, Ruiz, and deceased were there. Appellant, he says, was standing in the center of the road after leaving the saloon; that they were all drinking in the saloon; only Ruiz did not drink. Munoz, the deceased, was drinking, and they were all drinking together. Yasquez wanted to light with appellant in the house, and the fight was prevented. Deceased said to appellant: “You want to fight with Francisco Yasquez; you can have it with me.” Romero then testifies: “Francisco Espinoza and deceased then went out to the road, and I went in behind them to where they stopped, in the center of the road. They were talking about the fight. When deceased said those words, I told him; ‘What did they want to fight for?’ and deceased told me that, if I wanted anything, I could get it with him too, and I told him, ‘No, what we want to fight for, we were all around together, and there was no reason to fight,’ and deceased said some words to me in English; I can’t pronounce them, but I can understand them. When he told me them words, I answered him in Spanish. Then I put my hand on what I had, a knife.. This is the knife (shown witness) that I had. I struck some blows at him, but don’t know if I hit him or not; I know I hit him once. I am not certain about the place I cut him on the side; I am not sure if I cut him on the right or left side; I don’t know. I don’t remember how many times I cut him. Espinoza was standing close to deceased at this time. I was standing in front of him. Espinoza was standing - on one side of him, on the left side, about one step from him, about from there to the corner of the desk (in courtroom); I don’t know how many feet, I can’t calculate. That was in the center of the road. Nobody but us three was there. The rest of the party was in the door over at the saloon. No one of the party came down to where we were. All three of our hats fell, and, when the dead man. fell, I got a hat and left. The deceased fell on one side, to the side where I was. Espinoza got away from there when the deceased fell.” On cross-examination, he says, “Espinoza, deceased, and myself were very drunk. We had not had one difficulty before that trouble. The trouble arose when I went out to where they were standing in the center of the road. I told Munoz once or twice, ‘What did he want to fight for? he ought not to do that.’ I didn’t see Munoz with a knife, but I know that he had a knife at that time. When I spoke my words to him in Spanish, then I cut him (Munoz). I was on the left side of Munoz. I did not see nothing .in Espinoza’s hand. Espinoza was standing right there; he was standing there doing nothing. I did not stab Munoz; I cut him. When I cut him, he fell to the ground; he fell to one side, he came on top of me, then. fell to the ground. I couldn’t say what distance Espinoza was from Munoz at that time; I don’t know if he was several feet or not. If Espinoza made any motion towards Munoz, I didn’t see him, I don’t remember. I don’t know if Munoz turned around or not; I was just cutting at him. All I know about it Munoz fell on the ground. I grabbed the hat and ran away. Espinoza was very drunk, too. I didn’t see nothing in Espinoza’s hand.” Romero was the only witness who testified to the facts of the difficulty. There was a butcher knife found at the body óf the deceased which seems to have belonged to the witness Romero. Deceased was cut several times. One cut was a stab in the shoulder, and a small wound in the back under the point of the shoulder. No witness placed the defendant at the place of the homicide except Romero. The state introduced the statement of appellant that he was not present and knew nothing of the killing, and also appellant’s voluntary statement taken in the examining trial, which is as follows: “My name is Francisco Espinoza, and I live on the Schuchart ranch. I did not see any of the fight. As I went to open the gate to go home, Pas Ruiz caught up with me and said that the men were fighting. I then continued my journey and did not know anything about the killing until after I returned from my house to the store to’ buy some goods. Then the sheriff in the automobile got me and Manuel Schuchart. I did not know the man was killed until I went down to where he was in the road, surrounded by the crowd. My house is about one half mile from the place of the killing. No the knife or hat shown me are not mine.”

The court charged the jury affirmatively that Romero was an accomplice. This is error. This assumes appellant and Romero acted together in the killing, and also assumes defendant’s presence at the place. Romero was not corroborated as to this fact, and the state denied, by using appellant’s statement, that he was present. The condition of the case is a little peculiar under the facts. Romero testified that appellant had nothing to do with the fight. He went out there to fight, and he (Romero) went along and interfered, and the deceased turned upon him, and he and deceased fought, and he stabbed deceased with his knife, and that appellant did nothing. He excludes the idea that appellant engaged in the-fight, or even had anything in his hand; in fact, testified he did nothing. The state used the voluntary statement of appellant to the effect that he did nothing, and was not even present. The state therefore must rely upon the testimony of Romero to prove: First, that appellant toas aiding and encouraging Romero, which Romero denied; or, second, that he engaged in the difficulty in some way. Unless he did, appellant was not a principal in the transaction, nor was Romero an accomplice to the appellant. . There must be icrim-; inal connection between the parties to create either relation. Any party who is used as a witness who had any guilty connection with the transaction under investigation is an accomplice, and his testimony needs corroboration. If he did not engage in the difficulty, and had nothing to do with it, he would not be a principal or accomplice. The court should have drawn the line of distinction clearly in his charge that, if appellant was present and did not in any way engage in the difficulty, then the fact that he went out to fight the other man and did not fight him, but deceased turned upon Romero and had' a difficulty with him in which' appellant did not engage, appellant would not be guilty. That he was a mere onlooker would not make him guilty. He must have some connection with it either by participating directly or aid and encourage the man who did the killing. Then, again, the court should not charge directly that Romero was an accomplice. Under the facts, he may not have been an accomplice. If they were in any way acting together, of course his testimony would be that of an accomplice; if not, then he would not be. The assumption by the court that he was an accomplice and in so charging directly is an assumption, at least to some extent, if not completely, that the parties were acting together, and both participated in the killing. There are some circumstances showing two knives may have been used in the difficulty, and upon this the state relied to show that two men were engaged in the killing. This, however, is denied by appellant and by Romero. Under their evidence appellant did not engage in the difficulty, and was not even present. He could not be a principal if absent, and the state proved him absent.

The judgment ought to be reversed, and the cause remanded.

On Motion for Rehearing.

HARPER, J.

As, in the motion for rehearing, it is insisted that the conclusions of fact are incorrectly held in the'original opinion, we will state some portions of the evidence more fully.

Andres Romero testified:

“My name is Andres Romero. I do farm work. In May of this year I was seven miles on this side of Rio Medina, working for Ascención Labor. I am acquainted with Francisco Espinoza, the defendant i'n this case. T had known him a short time in May, of this year. I knew Petronilo Munoz. He is dead. His death occurred the 17th or 18th of May, this year, over at Manuel Schuchart’s saloon. It occurred in the center of the road about the distance from the saloon of that chair to that wall (indicating in courtroom). I don’t know how many steps it would be, can’t approximate it, never measured it. Before we never did have no reasons, until that day; them words that he said to me, that was the reason of the trouble. I can’t know what caused Petronilo’s death; have no idea. I saw him immediately before he died. Manuel Sehuchart was going to close the saloon and run us all out; told us to get out. Me, Francisco Espinoza, Francisco Vasquez, Pas Ruiz, and Petronilo Munoz were there. I don’t recollect any other persons; that is all I know. Petro-nilo was standing in the road, in the center of the road. We were all drinking there in the saloon; only Pas Ruiz didn’t drink there in the saloon. Petronilo Munoz was drinking, all drinking together. Francisco Vasquez wanted to fight with Francisco Espinoza, and we didn’t let them fight. The deceased said these words: ‘Voú want to fight with Francisco Vasquez; you can have it with me.’ And then Francisco Espinoza and deceased went out to the road, and I went in behind them to where they stopped, in the center of the road. They were talking about the fight. When deceased said those words, I tqjd him ‘What did they want to fight for?’ and deceased told me that, if I wanted anything, I could get it with him too, and I told him, ‘No, what we want to fight for, we were all around together and there was no reason to fight,’ and deceased said some words to me in English; I can’t pronounce them, but I can understand them. When he told me them words, I answered him in Spanish. Then I put my hand on what I had, a knife. This is the knife (shown witness) that I had. I struck some blows at him, but don’t know if I hit him or not; I know I hit him once. I am not certain about the place I cut him on the side; I am not sure if I cut him on the right side or left side; I don’t know. I don’t remem-be how many times I cut him. Espinoza was standing close to deceased at this time. I was "standing in front of him. Espinoza was standing on one side of him, on the left side, about one step from him, about from there to the corner of the desk (in courtroom); I don’t know how many feet; I can’t calculate. That was in the center of the road. Nobody but us three was there. The rest of the party was in the door, over at the saloon. No one of the party came down to where we were. All three of our hats fell, and, when the dead man fell, I got a. hat and left. The deceased fell on one side, to the side where I was. Espinoza got away from there when the deceased fell. I don’t know where he stopped at (Espinoza). Espinoza moved away from there when the deceased fell. When the deceased fell, I moved away and stepped from here to where you are (counsel), and took the hat and left. I don’t ■know who that hat belonged to; it ain’t my hat; it was a black hat. I have never seen that hat since; it has got a name in it. (Witness being shown hat.) That is the hat that I picked up. I don’t know what the deceased did after he" fell, I moved away from there. When they were standing I was looking at him; when I was leaving, I didn’t look back. I can’t know whether the deceased remained where he lell or not; when I left there he was there. I next saw Espinoza after the fight when they arrested me, which was next morning about 3 o’clock; I seen Espinoza in the calaboose there where they took me.
“Cross-examination: As to what time had they went to the saloon that evening, I went about 5 o’clock. We stayed there until they were going to close up the saloon, about 10 o’clock. As to how many drinks I had, first I spent 50 cents, and then I borrowed $1 to spend too. Espinoza, Petronilo, and myself were very drunk. We had not had one difficulty before that trouble. The trouble arose when I went out to where they were standing in the center of the road, and I heard some words, but I don’t know what the words were; I can’t pronounce the words. I told Munoz once or twice, ‘What did he want to fight for? Pie ought not to do that.’ I didn’t see Munoz with a knife, but I know the knife — know that he had a knife at that time. When I spoke my words to him in Spanish, then I cut him (Munoz). I was on the left side of Munoz. I did not see nothing in Espinoza’s hand. Espinoza was standing right there. He was standing there, doing nothing. I did not stab Munoz; I cut him. When I cut him, he fell to the ground; he fell to one side, he came on top of me, then fell to the ground. I couldn’t say what distance Espinoza was from Munoz at that time; I don’t know if he was several feet or not. If Espinoza made any motion towards Munoz, I didn’t see him, I don’t remember. I don’t know if Munoz turned around or not; I was just cutting at him. All I know about it Munoz fell on the ground. I grabbed the hat and ran away. Espinoza was very drunk too. I didn’t see nothing in Espinoza’s hand. I know Munoz had a knife, because he always carried it. I don’t know if he carried it open or not. I had this knife (shown witness) in my pocket.
“Redirect examination: I did not see any other knife except this knife (shown witness). That is the way that I used it (illustrating), cutting. I am not sure whether Munoz faced me all of this time or not, because we all three talked together. I didn’t see any knife besides that; I don’t remember. I did not cut or stab Munoz in the back. Munoz was about my size. I cannot say how Espinoza was dressed that afternoon.
“Recross-examination: I was cutting at Munoz; I don’t know where I cut him. I don’t know whether Munoz turned around or not. I didn’t stab at him. At the time of the trouble I was mad; I don’t know if Espinoza was mad or not.”

This is all of his testimony just as reported in the record.

Manuel Schuchart testified:

“I know the defendant, Espinoza. I knew Petronilo Munoz. I saw them at my place on the 17th of May last. Andres Romero was there. They were drinking beer, having a good time. Francisco Espinoza was there when the saloon was closed. Petronilo Munoz was also there, and Andres Romero. They killed Petronilo Munoz. * * * As to seeing Espinoza that night after I had seen the dead body, I was just leaving there, I seen him going away, just past the little gate, past the saloon, going off. I guess that was about 30 or 40 yards from where the body lay; something like that. He was kind of toward the saloon. Pie came by the saloon and went towards home, a gate there. I didn’t notice how he was dressed; it was after night, I couldn’t tell. I saw him after he came back after awhile again, after quite a bit. I-Ie then had a coat on and no hat. He had a black coat. I noticed the hat he had on before the killing; it was a black hat. When Espinoza came back after the killing, he was looking for his hat. He described the hat; he said it had ‘F.E.’ or ‘F.A.’ or something in it. He said that he had his initials in it. He did not describe it by color. I had no conversation with Espinoza about the killing. He told me that he wanted me to shut up; he didn’t say what, though. Pie told me that in English. He told me that he wanted me to keep my mouth shut.”
Lee Schuchart testified: “The first I knew about the killing, my brother notified me over the phone. It must have been about half past 8 o’clock then. The last I had seen of the defendant we had just closed the saloon; it was between 7 and 8 o|clock. He had on a blue jumper and black hat; otherwise I don’t know how he was dressed, I don’t remember. I do not remember what kind of buttons were on that blue jumper. I saw Espinoza, the defendant, when he came back there after the body was found; that was inside of half an hour or so after I was informed in regard to the killing. I noticed how he was then dressed; he had on a black coat, but didn’t have any hat; he was looking for his hat. As to his giving any description of the hat, he didn’t give any color, but he said it had ‘F.A.’ in it. He said that in English. ‘A’ in Spanish is ‘E’ in English.”

The testimony of the justice of the peace and constable is copied in the original opinion and unnecessary to restate, only adding that the constable testified: “I have seen this hat before. I saw it when I arrested Andres Romero. He had the hat on.”

The state offered this hat in evidence, which was identified by these and other witnesses, and which had the initials “F. E.” in it, which was found by the body of the deceased. It is seen by the other evidence that appellant came back to the dead body bareheaded, inquiring for his hat, and said that it had his initials F. E. in it. Appellant and Romero were arrested that night and carried to the jail, and on the road traveled there was found another knife, full of blood, the next morning.

It is true that appellant denied being present at the scene of the homicide, and denied that this was his hat. The state introduced this statement, and then introduced evidence of Romero, Manuel Sehuchart, and other testimony, and showed that the* statement was untrue. It introduced evidence showing that a black hat with the initials P. E. in it was found by the side of the dead man, and that appellant Espinoza was there bareheaded looking for his hat after it had been picked tip, and then said it was his hat. There are other facts and circumstances in evidence we deem unnecessary to detail, further than to say that Constable Burrell testified that on the night of the homicide Pas Ruiz (in the presence of appellant) told him that appellant and Romero killed the deceased, and he then arrested Espinoza. It is true that appellant denied that he had seen the dead man at all that day; yet the evidence overwhelmingly shows that he was with him in the saloon, drank with him, and went out of the saloon with the dead man.

Appellant again insists that we erred in admitting the testimony of the justice of the peace and constable, copied in the original opinion, and cites us to the case of Powdrill v. State, 62 Tex. Cr. R. 442, 138 S. W. 114, in which it was held not permissible to permit a doctor to state which, in his opinion, was the first wound inflicted. That opinion correctly decided the question under the facts of that case, but no one in this case gave any opinion as to which wound was first inflicted. What they did testify was that the knife found on the ground could not have inflicted the wound in the back, because they tried to insert it in the wound and the blade was too broad, much broader than the stab wound in the back; that this wound went deep enough, as ascertained by investigation made there on the ground, to reach the hollow, and was the wound which caused the deceased’s death. They also examined the other wounds and described them as shown by their testimony. The other cases cited by appellant are cases similar in character to the Powdrill Case, and have no application to the evidence adduced in this case, which has always been held admissible as shown by the authorities cited in the original opinion.

The next contention in the motion for rehearing is that we erred in holding the evidence sufficient to sustain the conviction. The evidence for the state shows that appellant and one Vasquez had a quarrel, but they were not permitted to fight, when deceased said to appellant: “You want to fight with Francisco Vasquez; you can have it with me.” And then appellant and deceased went to the road, and were talking about fighting, and Romero asked, “What do you want to fight for?” and deceased remarked to Romero, if he wanted .anything, he could get it, turning around facing him, when the fight started, Romero being in front of deceased, while appellant was at his side or back. In a few seconds deceased dropped dead, with wounds in front and a wound behind; it being clearly demonstrated that the wound in the back was inflicted with a different knife from those in front. Appellant fled, but returned in search of his hat, which had been picked up by the side of the dead man.

The court instructed the jury: “In this case the state relies for a conviction upon circumstantial evidence, and you are instructed that, in order to warrant a conviction upon circumstantial evidence, each and every fact necessary to establish the guilt of the accused must be proved by legal and competent evidence beyond a reasonable doubt, and the facts' and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis than ■ that of his guilt, and in such cases it is not sufficient that the circumstances may coincide with, account for and therefore render probable the guilt of the accused; they must exclude, to a moral certainty, every other reasonable hypothesis than that of the guilt of the accused as charged, and produce in your minds a reasonable and moral certainty that the accused and no other person committed the offense, or was a principal in the commission of the same, as that term has been hereinbe-fore defined.”

At the time of the trial, when the charge was submitted to him, the only exceptions taken to the charge of the court below read as follows:

“Now comes the defendant in the above entitled and numbered cause and excepts to paragraph 9 of the court’s charge, wherein it charges on the law of principal in that said charge is not supported by the evidence; the undisputed evidence showing that the defendant, Francisco Espinoza, did not aid Andres Romero in his assault on the deceased by ‘words.’
“2. That said charge is insufficient, in that it failed to state that before a defendant could be convicted as a principal, where a killing is committed in his presence, that such killing must be done in pursuance of a previously formed design, in which the mind of the party witnessing the killing must unite with and concur with the mind of the party actually doing the killing.” "

The court instructed the jury: “All persons are principals who, being present, are guilty of acting together in the commission of an offense, and, when an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts, or encourage those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging in the commission of the offense, or taking part therein, are principal offenders, and may’be prosecuted and convicted as such. In this connection, however, you are further instructed that the mere presence of a party at the time and place where another is engaged in committing an offense will not constitute such party a principal; he must, knowing the unlawful intent of the other party, actually do some act in the furtherance thereof, or in some way encourage the party actually committing the offense, in order to be prosecuted and convicted as a principal to such crime.” It will be noticed that the court does not use the word “words” in the charge, but instructs the jury that his mere presence would not constitute him a principal, but, before they would be authorized to find him a principal in .the commission of the offense, they must find that he, knowing the unlawful intent, did aid by acts, or encourage those actually engaged in the commission of the offense, and the record in this ease clearly authorized a finding by the jury that appellant inflicted the wound in the back, while Romero was inflicting the other wounds, and it would be immaterial under such circumstances which wound was the fatal wound. The charge as given has been frequently approved by this court. Barton v. State, 53 Tex. Cr. R. 443, 111 S. W. 1042; McKinney v. State, 49 Tex. Cr. R. 595, 96 S. W. 48; Parks v. State, 79 S. W. 537.

The court also instructed the jury: “If you find from the evidence that the said Petronilo Munoz was killed, and you further find from the evidence that one Andres Romero inflicted the wound that caused his death, then, in case you so find the fact to be, or if you have a reasonable doubt of this, you will acquit the defendant, unless you further find that the defendant was present and aided and abetted in the killing of the said Petronilo Munoz, or encouraged the said Andres Romero in doing so as a principal, as that term has hereinbefore been explained to you.” Thus it is seen that the court in his charge protected every right of defendant, and the charge is subject to neither of the exceptions made in the court below at the time the charge was submitted to appellant’s counsel. This case was tried November 7, 1913. - The Legislature passed a law which went into effect July 1, 1913, four months prior to the trial, which provides that the court shall prepare a charge and submit it to counsel, who shall then make such objections to the charge in writing as he desires, and this court on appeal can pass on no question not thus made and presented to the trial court. Chapter 138, Acts 33d Leg. p. 278. This chapter provides that we shall not reverse a case • because of an error in the charge, unless an objection was made thereto at the time of the trial, this being a positive command to us, and our Constitution authorizes the Legislature to place such restrictions around the right of appeal as they deem the interest of justice and a sound public policy demands. Section 5 of article 5 of the Constitution. However, Judge DAVIDSON filed a dissenting opinion, iñ which he holds that the court erred in charging the jury affirmatively that Romero -was an accomplice, and he discusses this at length. We have copied all the exceptions made by appellant at the trial, and no objection was made to the charge of the court. In this respect, nor was the charge on accomplice testimony in any way questioned by appellant, as the record in this court will disclose.

We have read and reread the motion for a new trial filed in the court below by appellant, and he in said motion makes no such contention. In the brief filed in this court by appellant, nor in the motion for rehearing, does appellant contend that the court erred in the charge on accomplice testimony. The only place that this question is raised is in the dissenting opinion of Judge DAVIDSON, and his whole dissenting opinion heretofore filed herein is based on a proposition that has never been suggested nor contended for by appellant. The dissent, therefore, is based on a matter not presented in any manner, shape, or form in the record before us, as is manifest by the record now on file in this court, and to consider and pass on such question we would be compelled in our opinion to go directly in the face of the law passed by the Legislature for the government of this court. Therefore the court is not authorized to consider the proposition on which the dissent is based. However, since Judge DAVIDSON has seen fit to raise a question, and base his dissent thereon, not raised nor discussed by appellant, and which was not presented to the trial court, we will say this much: We do not think the court erred in charging that Romero was an accomplice in law. Had he not submitted the law of accomplice testimony, reversible error would have been presented by the record, had the appellant raised that issue. Romero admitted that he engaged in the fight and cut deceased, thus showing a guilty participation on his part at least, while he by his testimony placed appellant in position to inflict the wound in the back. Romero did not deny his complicity in the commission of the offense, nor the fact that he had been in-dieted and convicted of the offense. The sole question in this case was: Did the evidence conclusively show an acting together, an unlawful attack by appellant and Romero on deceased, both of them inflicting wounds on deceased? Appellant denied he inflicted any wound or participated in the fight. Romero says he did not inflict the wound in the back, and, while he did not see appellant inflict the wound, yet that appellant and' appellant alone was in position to inflict that wound. His testimony is copied in full herein. The evidence and all the evidence shows that Romero had a guilty connection with the offense charged, and the charge of the court does not assume that appellaht participated therein, but, after instructing the jury who are principals in the commission of an offense, instructs them to acquit appellant, as hereinbefore shown, if they believed Andres Romero inflicted the wound that caused his death, or they had a reasonable doubt of that fact, unless they found, as a fact, that appellant was a principal in the commission of the offense, as principals had theretofore been defined. The court further instructed the jury: “In this case you are instructed that you cannot find the defendant guilty upon the testimony of the said Andres Romero, unless you first believe that his testimony is true, and that it shows that the defendant is guilty as charged, and even then you cannot convict the defendant, unless you further find that there is other evidence in the case apart from the evidence of the said Andres Romero tending to connect the defendant with the commission of the offense charged in the indictment, and then you must find and believe from all of the evidence in the case beyond a reasonable doubt that the defendant is guilty before you find him guilty.” Romero was corroborated by other witnesses who saw them go out of the saloon together by the fact that appellant’s hat was picked up where Romero said he .was standing, and other facts in evidence. *

Take the charge as given, it is not subject to the criticisms contained in the dissenting opinion of Judge DAVIDSON, and, as no such question was raised by the appellant in the trial court nor in this court, the criticism in our opinion is wholly unwarranted and unjustified under the laws of this state, and no dissent should have been based thereon. It is unjust to the trial judge to reverse a case, or base a dissent on grounds not presented to the trial judge, and which the appellant does not seek to present to this court for review.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STANFIELD v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Receiving Stolen Goods (§ 8) — Knowledge oe Theet — Evidence.
    Evidence; that, after cattle came into defendant’s possession, a few days before he sold them, the brand on them was changed, is' evidence of his knowing, when receiving them, that they were stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dee. Dig. § 8.]
    2. Receiving Stolen Goods (§ 9) — Recent Possession — Explanation—Instructions.
    Though where the state relies on possession of recently stolen goods and other circumstances, in the absence of explanation of possession, a charge on recent possession need not be given, but one on circumstantial evidence is enough, yet where it relies on such possession with other circumstances, but, in making its proof, shows that when the possession of the person charged 'was first challenged he gave an explanation of his possession, which, if true, would entitle him to acquittal, the issue made by the explanation must be presented in a separate and distinct paragraph from the charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Stolen Goods, Cent. Dig.'§§ 19-22; § 0.] Receiving Dec. Dig.
    3.Obihinal Law (§ 508) — Testimony oe Joint Indictee.
    One is not an incompetent witness for the state because jointly indicted with defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 508.]
    4. Witnesses (§ 307) — Excusing Witness Claiming Privilege.
    The proceedings were not irregular, where, on a prosecution for receiving from E. stolen cattle, E., called by the state, after testifying that he bought the cattle, claimed his privilege, and was excused from further testifying.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1061-1064; Dec. Dig. § 307.]
    5. Criminal Law (§ 721%) — Argument oe Prosecuting Attorney — Matters Not in Evidence.
    A witness for the state having been excused, on claim of privilege, it was improper for counsel for the prosecution to state, in his argument to the jury, that if he had testified the state could have thrown more light on the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673 ; Dec. Dig. § 721%.]
    6. Criminal Law (§ 719) — Argument oe Prosecuting Attorney — Matters Not in Evidence.
    It was improper for counsel for the prosecution, in his argument to the jury, to tell them that a witness, excused on his claiming- his privilege in their absence, was indicted for the same offense; this fact not being in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.]
    7. Receiving Stolen Goods (§ 8) —Evidence^
    Testimony on a prosecution for receiving stolen cattle, of one having charge of a pasture, that he was instructed by the owner of it to keep defendant out of it, is improper.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.
    T. J. Stanfield was convicted, and appeals.
    Reversed and remanded.
    Fires & Diggs, of Childress, Browne & Hawkins, of Paducah, T. T. Bouldin, of Matador, and Williams & Williams, of Waco, for appellant. G. E. Hamilton, of Matador, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted under a count in the indictment in which it was alleged that appellant did unlawfully and fraudulently receive from Willis Evans and conceal three head of cattle, the property of A. T. Fish, and which said property had theretofore been acquired by the said Willis Evans in such manner as that the acquisition of same comes within the meaning of the term of theft; the defendant well knowing the same liad been so acquired at the time lie received and concealed the cattle.

It is thus seen that the count in the indictment specifically charges that Willis Evans stole the cattle from Mr. Fish. The proof shows that Mr. Fish lost three head of cattle — heifers—all branded -¡- on hip and on shoulder. In the record they are particularly described by Mr. Fish and his father. Willis Evans, a few days after the loss of the cattle by Fish, was seen in possession of three heifers that met this description, and the ones he had were branded -¶- on hip and -j-on shoulder. After reading the description of the animals lost by Fish, and the description of the animals seen in Evans’ possession in the Brothers’ pasture by Mr. Ingram, one is necessarily driven to the conclusion that Evans was then in possession of the stolen animals. - At the time his possession was challenged by Mr. Ingram, Evans told him he had bought the animals from a Mr. Gil - lespie over on North Pease river. Appellant was there in the Brothers’ pasture with Evans, and Mr. Ingram says that when the animals were found Evans sold or pretended to sell the animals to appellant, trading them to him for “some cows and $10.” That appellant and Evans then drove the three heifers out of the Brothers’ pasture, of which Mr. Ingram was manager. It is thus seen that when appellant received the cattle from Evans they were branded -p on hip and -p on shoulder. A few days subsequent to this appellant sold some cattle to Mr. Caradine, a butcher. Garadine killed a part or all of the cattle for a barbecue held about that time in Childress county. Garadine sold the hides from the animals he killed to John Scott, who shipped the hides to Finnagin & Go., at Wichita Falls. Sheriff Baceus in investigating the matter went to Wichita Falls, and from a description given him by Mr. Fish selected a hide out of a number in Finnagin & Co.’s house and brought it back. This hide was branded on hip and on shoulder. This hide was positively identified by Mr. Fish as the hide of one of the animals he had lost, by its flesh marks, it being a motley faced heifer, with some white in the face, and a red rim under the eyes. Mr. Baccus and a number of other experienced cattlemen, after inspecting the hide, say that the -p brand had been changed to -j- by burning the brand — extending the line above the top of the -p so as to make a -J-. If this is true, this brand was changed after the cattle came into the possession of StanjSeld, appellant, and would be a cogent circumstance tending to show that he knew they were stolen cattle when they were received by him; otherwise the brand would not have been changed from a -p to a -j~ before they were sold. Taking these circumstances and other circumstances in the record, we think the evidence sustains the verdict, and we overrule this ground of appellant’s motion.

However, it is noticed that when Evans’ possession of the cattle was first questioned he told Mr. Ingram that he purchased them from a man named Gillespie over on North Pease river. The court instructed the jury .on circumstantial evidence, and the state insists that this was a sufficient presentation of the issue presented by the testimony, citing a number of cases wherein recent possession and other circumstances were relied on for a conviction, and this court had held that this was a sufficient presentation of the issue raised. But in all those cases it will be noted that when the possession was first challenged no explanation of possession was at that time made. Appellant also says there is a conflict in the decisions of this court, and labors to reconcile the seeming conflict. We do not think there is any conflict in the decisions. In one class of cases the state relied on recent possession and other circumstances in the absence of explanation of possession, and this court held, and still holds, that it was not necessary to give any charge on recent possession, but a charge, on circumstantial evidence was all that was required under such circumstances, for the “recent possession” unexplained is a circumstance with other circumstances in the case to be considered, and it would be improper to single out this circumstance and charge thereon. In the other class of cases, the state relied on possession of recently stolen property, with other circumstances, but in making its proof showed that, when the possession of the person on trial was first challenged, he gave an explanation of his possession, which if true would entitle him to an acquittal. In that character of case we have held, and still hold, that, in addition to the charge on circumstantial evidence, the issue made by the explanation of his possession, consistent with his innocence, must be presented in a separate and distinct paragraph from the charge on circumstantial evidence. Two or three forms presenting this issue have been approved by this court, one in substance the same as that requested in appellant’s charge No. 3, which was refused by the court. Again, we have held that this question might be presented in abbreviated form, that if the jury believed that the explanation was true, or had a reasonable doubt of that fact, an acquittal should follow. Wheeler v. State, 34 Tex. Cr. R. 353, 30 S. W. 913; Mathews v. State, 32 Tex. Cr. R. 357, 23 S. W. 690, and eases there cited. While the different forms used in these cases have both been approved, yet the form used in the Mathews Case has come nearer receiving the unanimous approval of the court. It is short, concise, and presents the issue clearly.

Again it is shown that the state'called Willis Evans as a witness. This it had the right to do, for even though he was jointly indicted, yet he would be a competent witness for the state. He testified: “I dc know about the three yearlings in the Brothers’ pasture which Stanfield and I toot out of that pasture. I bought these yearlings on North Pease river from Gillespie. I could not tell you his first name.” This witness then claimed his privilege of not testifying as he was indicted for an offense growing out of this transaction, and he was excused by the court from further testifying as the state intended to prosecute him. There was nothing irregular in these proceedings, and appellant’s criticisms are without merit. However, in another bill it is shown that in presenting the case Mr. Hamilton, of counsel for the prosecution, in his opening argument to the jury argued, as an element of guilt, that the state had placed the witness Willis Evans upon the stand and that the defendant’s counsel had objected to said witness testifying or the state would have thrown more light on the case, which argument the court upon objection did stop, but did not instruct the jury, as requested by counsel for defendant, not to consider the said argument as a criminative fact or circumstance against the defendant, and the said counsel for the state further argued to said jury that said Willis Evans did stand indicted in this same court for this same offense, and though counsel for the defendant at the time objected to this argument for the reason it was out of the record, improper, and prejudicial, the court.declined to stop counsel, but permitted him to continue such argument before said jury. This was improper. No objection appellant could have made to Evans testifying would have been sustained. It was not on appellant’s objection that the witness was excused, but on his (the witness’) plea of privilege, and, after the court had sustained such plea, it was not proper for counsel to tell the jury they “could have thrown moi-e light on the case” if such witness had testified. It is only evidence adduced that can be considered by the jury, and not what could have been adduced if a legal barrier had not been interposed. Again, when Evans claimed his privilege, the jury was not in the room, and it was improper for counsel to tell them that he stood indicted for the same offense. This fact was not in ■ evidence, and counsel in their argument cannot testify to additional facts, and should always keep themselves within the record. No special charge being requested, this might not present reversible error; but, as it will be necessary to reverse the case on account of the error hereinbefore ■shown, we call attention to this matter that such error may not again creep into the record on another trial of the case.

In another bill it is shown that when Mr. Ingram was testifying, and had shown that he was in charge of the Brothers’ ranch and pasture, and to the other facts herein stated, he was asked if he had instructions from Mr. Brothers “to keep appellant Stan-field out of that pasture,” and the witness was permitted to answer that he had such instructions. This was improper, and the objection made to this testimony should have been sustained.

The motion for a new trial is very lengthy, and there are a number of bills of exception in the record. While we do not discuss them, we have carefully reviewed each bill and each ground in the motion, and hold that none of them present error, other than those mentioned above.

But on account of those errors the judgment is reversed, and the cause remanded.


author: 'PRENDERGAST, P. J.

text:
    HAHN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    On Motion for Rehearing, April 8, 1914.)
    1. Criminal Law (§§ 665, 1144) — Appeal— Presumptions.
    The placing of witnesses under the rule being in the sound discretion of the trial court, it will, until the contrary is shown, be presumed that such discretion was correctly exercised.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566%, 2736-2764, 2766-2771, 277L-2781, 2901, 3016-3037; Dec. Dig. §§ 665, 1144.]
    2. Criminal Law (§ 1166%) — Teial—Abuse of Discretion.
    Where the sheriff was a witness, the refusal of the court to place him under the rule with the other witnesses was not an abuse of discretion, where accused made no showing of prejudice, and the court qualified the bill of exceptions by a statement that, knowing the high character of the witness, he was of the opinion that no harm was done to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    3. Criminal Law (§ 393) — Evidence — Admissibility.
    Where the sheriff compelled accused to make tracks so that they could be compared with the tracks made by the guilty party, evidence of the comparison of the tracks is admissible.
    [Ed. 'Note. — For other cases, see Criminal Law,. Cent. Dig. §§ 871-874; Dec. Dig. § 393.]
    4. Criminal Law (§ 811) — Trial—Instructions.
    Where there was other evidence connecting accused with the offense, besides the comparison of the tracks made by him and his confederate and by the horse they drove, the refusal of a special charge that evidence of footprints is not sufficient to support a conviction was proper because singling out a particular circumstance in the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dee. Dig. § 811.]
    On Motion for Rehearing.
    5. Criminal Law ■(§ 665) — Trial—Conduct —Placing of Witnesses Under the Rule.
    Code Or. Proc. 1911, art. 296, provides that the examining magistrate “shall,” if requested, place the witnesses under the rule, while article 719, referring to the trial court, provides that at the request of either party the witnesses on both sides “may” be removed from the courtroom to some place where they cannot hear the testimony. Held, that in view of article 58 and article 10, Pen. Code 1911, and providing that words and phrases are to be taken in their usual acceptation, the placing of witnesses under the rule rests in the discretion of the trial court; the word “may” being used in contradistinction to “shall.”
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1549-156614 > Dec. Dig. § 665.]
    6. Burglary (§ 41) — Prosecution — Evidence-Sufficiency.
    The evidence in a prosecution for burglary held sufficient to support conviction.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Roy Hahn was convicted of burglary, and he appeals.
    Affirmed.
    W. J. Arrington and J. M. Carter, both of Aspermont, Chapman & Coombes, of Anson, and W. F. Ramsey and C. L. Black, both of Austin, 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

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

   'PRENDERGAST, P. J.

From a conviction - of burglary with the lowest penalty assessed, appellant prosecutes an appeal.

There are but few questions raised. One of these is appellant claims the evidence is insufficient to sustain the conviction. We have carefully read and studied the evidence. It is circumstantial. We are not only thoroughly convinced from a study of it that it is sufficient to sustain the conviction, but from it no other reasonable conclusion could be reached than of the appellant’s guilt. We think it is unnecessary to recite the evidence. It is quite lengthy. The statement of facts is more than 100 typewritten pages.

The state invoked the enforcement of the rule. The witnesses were thereupon duly sworn and properly instructed by the court. One of the material witnesses for the state was Fred Senter, the sheriff of Stonewall county in which county the burglary is alleged to have been committed and from which county to Jones county the venue had been changed. The state requested that said witness be permitted to remain in court. The defendant objected to this. The witness remained in the courtroom and heard the testimony of the other witnesses who testified before he did. The court, in qualifying the bill, stated, in effect, that the rule always obtained in the courts and it was the custom to permit the sheriff to remain in the courtroom, not to be required to go out under the rule, and he followed this custom, stating further: “The court, knowing the high character of the witness, was of the opinion that no injury would be done appellant thereby and that none was done.” This court, in a uniform line of decisions, has always held that such matters are committed to the sound discretion of the trial court and that such discretion will be presumed to have been correctly exercised until the contrary is shown. The court did not abuse its discretion in this case. White’s Ann. O. G. P. § 7-67, and cases collated thereunder.-

About the night of December 13, 1912, the depot building of the Wichita Valley Railroad at Aspermont in Stonewall county was burglarized and certain express articles stolen therefrom. The next day after the discovery of the burglary, said sheriff, Senter, with Mr. Bingham, suspected appellant and Don Brewster, who was with him, of the burglary. They found where a buggy and double team had been hitched at a rather secluded place some 100 or more yards from the depot. They tracked two persons from the buggy towards the depot and back to the buggy. One of the horses made a peculiar track which was readily identified. They also found the tracks of these same two parties and said horse and the buggy tracks at a place where a fire had been the night before about a mile and a half from the town of Aspermont, where appellant and said Brewster and this team of horses were seen at this fire early the night of December 13th. They also found these same tracks — all, vehicle, horse’s and persons’ — at an old rock house about four miles from Aspermont Both these places where the appellant and Brewster were seen at this fire, and the old house were near the road. They suspected appellant and Brewster and watched them the next day. After appellant and Brewster left town, the sheriff and Bingham followed them. They left Aspermont after appellant and Brewster had already gone about one mile. The sheriff and Bingham were on horseback. They rode rapidly until they got in sight of appellant and Brewster. Appellant and Brewster .drove rapidly until they got near said old rock house. As they did so, they drove slowly, in a walk, looking back, and evidently discovered the sheriff and Bingham following them. After passing the old house, they drove rapidly for some short distance. They were overtaken by the sheriff and Bingham and their buggy searched, but the stolen goods were not found therein. They were then discharged, and the sheriff and Bingham went back to this old rock house and searched it, finding therein three of the stolen articles. They also discovered the tracks of two persons to and from this old house and the tracks of the. buggy and team where they had been hitched in the lane near thereto. Appellant and Brewster, after being turned loose at first by the sheriff, got on an elevation where they could see what the sheriff and Bingham did, and stopped and watched them. As soon as the sheriff and Bingham found the goods in this old house, they went to and arrested appellant and Brewster and brought them back and stopped them opposite this old house. The sheriff then went back to the house and further searched for tracks. Upon discovering them, he called to Bingham, who was with appellant and Brewster, and told him to bring the two men to the house, which was done. The sheriff thereupon had both of them to make tracks so that they could be measured. The sheriff then measured their tracks then made, accurately with the tracks he had already found, going to and from this house, and they corresponded exactly. He also measured the horse’s track at this house where it had been evidently the night before and at the said fire and where the team had been hitched near the depot, and they corresponded exactly. He also measured the hoof of the horse itself, and it corresponded exactly with these tracks and was the horse that made them.

Appellant has several bills of exceptions to the testimony of Bingham and the sheriff, Senter, as to these tracks, both of the horse and men, and objected for various reasons, among others, claiming that by the sheriff forcing appellant and Brewster to make their tracks at the old house, while under arrest, it was inadmissible, as it was thereby forcing them to give testimony against themselves while under arrest. All this testimony was clearly admissible and has many times been so held in a uniform line of decisions by this court. Pitts v. State, 60 Tex. Cr. R. 527, 132 S. W. 801; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595; Meyers v. State, 14 Tex. App. 35; Bruce v. State, 31 Tex. Cr. R. 590, 21 S. W. 681; and section 1074d, White’s Ann. O. O. P.

The court gave a correct, and full charge submitting everything aptly that was proper and necessary to be submitted to the jury. Appellant makes no complaint of the court’s charge in any respect. He requested, and the court refused to give his special charge to this effect: “That character footprints, measurement of tracks and tracks are not of themselves sufficient to support a conviction for burglary. Therefore you are charged that the evidence of tracking, measuring, and comparing the tracks introduced by the witnesses Senter and Bingham and Whitaker would not of themselves warrant a conviction for the offense charged in the indictment against the defendant.” There was much other evidence tending to connect appellant with the burglary in addition to the tracks of himself and Brewster, the horse and the vehicle. It would have been improper for the court, therefore, to have singled out a part of his testimony and given appellant’s special charge on the subject. This can no more be done against the state than against appellant. As stated above, the court correctly, aptly, and fully submitted a charge to the jury. See White’s Ann. O. O. P. § 810, and cases there cited.

No other questions are raised to be passed upon.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant files a motion for rehearing and a brief thereon in both this and the companion case of Don Brewster, presenting in this three, and in the Brewster Case, two grounds: Eirst, the holding of this court on the question of enforcing the rule; second, that the evidence is insufficient to sustain the verdict; and, third, in refusing appellant’s special charge. The latter two questions, only, are raised in the Brewster Case. The first did not occur therein. So that in the latter two grounds what we say in this applies equally to the Brewster Case.

First, Did the court commit reversible error in excusing the witness Senter from the rule? This question was sufficiently stated in the original opinion; but, in addition thereto, we now state further thereabouts. In his bills he bases the supposed error on the bare fact that the court erred in excusing Senter from the rule and in not enforcing it as to that witness. The bill does not show that he demanded or in any way sought to have Senter first testify. In the bill he does not show, or attempt to show,.any injury to him by reason of the court’s action, other or further than that three other material witnesses testified before Senter did, if that would show or tend to show any injury. He does not show or attempt to show that the witness Senter was influenced in any way by the testimony of any of these witnesses, or that he colored his because thereof, or that he in any way attempted to testify .or testified other than the truth, the whole truth, and nothing but the truth. The record shows that the Brewster Case, at least, had been tried befóte this time in Haskell county. We take it that there can be no question but-that in that trial all these same witnesses and Senter testified therein. While the record does not disclose it, it is not at all improbable that one or both of these appellants were also tried in Stonewall county where the crime was committed and where the indictments were found before the change of venue. Whether either of the appellants were tried prior to this in Haskell county is immaterial. The trial judge in this case and the attorneys must have known what the testimony of Senter and each of the other witnesses had been in the other trial and would be on this. Appellant does not attempt to show that Senter’s testimony on this trial was in the slightest or in any material matter different from what it was on any other trial. If there had been any difference, or supirosed difference, or Senter in his testimony had been influenced in the slightest by hearing the testimony of the others before he testified, the judge concludes it by his qualification of appellant’s bill, which appellant accepted, and under all the decisions of this court and all the rules he is bound thereby. The court said: “The court, knowing the high character of the witness, was of the opinion that no injury would be done appellant thereby and that none was-done.”

But because of appellant’s persistence in claiming the action of the court in this respect was reversible error, we will further discuss the question. Every text-boot writer which we have examined — and we have examined a large number — without any exception, lays down in substance this rule which we quote from 38 Oyc. 1369: “The separate examination of witnesses at the trial is a matter within the discretion of the court which may order witnesses to be separated and examined each out of the hearing of the others. * * * The discretion of the court will not be reviewed on appeal unless there is a manifest abuse thereof.” We also cite as holding substantially, if not precisely, the same thing, 12 Oyc. 516; 14 Ency. of Ev. 587 •, 1 Greenl. Ev. § 432; 1 Thomp. on Trials, § 275; Underhill’s Crim. Ev. § 225; 1 Whart. Crim. Ev. § 446; and every other text-book writer on the subject. Mr. Wigmore, cited and quoted by appellant on the subject, in effect, says the same thing. He contends, however, that it is the right of an accused, and the courts have no discretion, but he concedes that only a few courts so hold. Every decision of this court and of our Supreme Court when it had criminal jurisdiction is to the same effect as the text-books cited above. Buckler, in his Criminal Digest (volume 2, p. 1750), says: “Whether or not witnesses will be placed under the rule rests in the discretion of the trial court, which will not be revised on appeal, in the absence of a showing of abuse and injury to the accused” — citing 15 decisions of this court from the third to the thirtieth Reports. And on page 1752 he says: “The admissibility of witnesses who have violated ‘the rule,’ or who have not been placed under the rule, is within the sound diseretition of the court, and such discretion will be presumed to have been correctly exercised until the contrary appears” — citing a large number of the decisions of this and our Supreme Court. To precisely the same effect is Judge White, in his Annotated Criminal Procedure (section 767), citing many cases.

But in addition to this, let us go to our own statute and see what it says. In examining trials before magistrates, our statute (article 296, O. C. P.) says: “The magistrate shall, if requested by the accused or his counsel, or by the person prosecuting, have all the witnesses placed in charge of an officer, except the witness who is testifying, so that the testimony given by any one witness shall not be heard by any of the others.” Observe the language, the magistrate shall not may. Then go to the other articles of our Procedure on the same subject, we quote all of them:

“Art. 719. At the request of either party, the witnesses on both sides may be sworn and placed in the custody, of an officer and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule.
“Art. 720. When witnesses are placed under rule, those summoned for the prosecution may be kept separate from those summoned for the defense, or they may all be kept together, as the court shall direct.
“Art. 721. The party requesting the witnesses to be placed under rule may designate such as he desires placed under rule, and those not designated will be exempt from the rule, or the party may have all the witnesses in the case placed under rule.
“Art. 722. Witnesses under rule shall be attended by an officer, and all their reasonable wants provided for, unless the court, in its discretion, directs that they be allowed to go at large; but in no case where the witnesses are under rule shall they be allowed to hear the testimony in the case, or any part thereof.
“Art. 723. Witnesses, when placed under rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under rule; and the officer who attends the witnesses shall report to the court at once any violation of its instructions; and the party violating the same shall be punished for contempt of court.”

Observe the language in these articles (719). At the request of either party the witnesses on both sides may be sworn and placed in the custody of an officer, etc. (article 721). The party requesting the witnesses to be placed under rule may designate such as he desires placed under rule, and those not designated will be exempt from the rule.

It is a general rule, held so by many of the decisions of this court, that all rules of procedure are directory and not mandatory, unless the language and context show that the Legislature intended that they should be mandatory. Bizzell v. State, 162 S. W. 861, and cases and text-books there cited and quoted. Article 58, O. O. P., is: “All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law.” To the same effect is article 10, P. C. Taking the above statutory enactments, we think it certain that the Legislature intended precisely what they said when they said at examining trials the magistrate shall enforce the rule. But in trials before the district court they confide a discretion to the trial judge and provide that he may enforce the rule, and not that he is peremptorily required— shall do so.

However, we would not be understood as holding otherwise than that this discretion lodged in the trial courts is a sound judi-eial discretion and not a personal or arbitrary one, and that in all instances unless good reasons are shown otherwise when the rule is demanded by an accused that the judge should enforce it, and if in this or any other case it were shown by an accused that the court had abused his discretion and his rights had been injured, we would, in all probability, reverse a judgment of conviction. But this ease shows that the court did not abuse his sound judicial discretion, and in addition that no injury whatever was done to the appellant; as said by this court, through Judge Hart, in Davis v. State, 28 Tex. App. 560, 13 S. W. 997, “to reverse in the absence of probable injury would be contrary to principle.”

The evidence in these cases was wholly circumstantial, and the court so charged and gave a correct, full, and apt charge on that subject to which there is no objection. We have again carefully reviewed the evidence in these cases. We do not propose to recite all the evidence, nor what the respective witnesses testified. We will merely give a short statement of what the jury were clearly authorized to find and believe therefrom. Most of the evidence, if not all of it, -was uncontradicted. Late in the evening of December 13, 1912, appellants, Hahn and Brewster, were seen going towards Aspermont together. They arrived in Aspermont about or just after dark. Prom time to time during that night until they went to bed in the hotel about 10:30 or later they were seen in various places at different times— not continuously — about Aspermont, always together. They were thus in company with one another all of the next morning and until they started to their homes about 14 miles distant in a buggy, and they were thus together alone in the buggy when they were arrested, charged with this offense. On the night of December 13th, the depot .building of the railroad there was burglarized. Pour different articles were stolen from the house at the time of the burglary. The team driven by appellants, Hahn and Brewster, was a dun team. The horse working on the right had a defective hoof on his right forefoot which made a peculiar track, readily identified and clearly shown. The depot building burglarized was situated about a half mile from the town of Aspermont; there being no inhabitants between the town and depot for that space. s There was a mesquite flat, all open country, from the town to the depot.. This team was hitched that night in this mesquite flat about 100, or a little more, yards from said depot. The tracks of two persons, and only two persons, were shown going from this buggy where hitched towards the depot, and the tracks of those two persons, and no other, were also found going from towards the depot to. the buggy. The tracks of this team and these two men .were measured accurately, and the tracks of the horse were shown without a shadow of doubt to be made by one of the horses of this team driven by these parties. The men’s tracks, going from the buggy towards the depot and returning, were measured and shown to be the tracks of these two persons, Hahn and Brewster, and of no other persons. • The said four stolen articles, when stolen, were wrapped up. In the early part of that night by the side of the road about a mile and a half from Aspermont 1-Iahn and Brewster, appellants, were seen at a fire. The fire was not made from wood, but from paper and some clothing. At the time they were seen at this fire, this same dun team of theirs was standing hitched to the fence. The defective track of this horse was there found and unquestionably identified as that of these appellants’ horse. The tracks of two men and only two men were found at this fire. They were measured accurately and found without question to be the tracks of these two parties and of no other. The remnant from the fire was examined the next day, and portions of an advertisement from a tailor- partially consumed was found therein. Also, some buckles and buttons. These buckles and buttons, doubtless, were the remnant of some of the clothing, one of the four stolen packages. The part of the advertisement found unconsumed by fire doubtless was inclosed in one of the other stolen articles which was íshown to have been shipped from a tailor who made and shipped to Aspermont that article of clothing. The next day three and only three of the stolen articles were found in an old abandoned rock house about three or four miles from Aspermont, without doubt identified and shown to have been three of the said stolen articles. Neither of these articles when found had any paper or wrapping around them.

Without question the wrapping that had been around them was the paper that made said fire. The old rock house was a mile or two further from Aspermont than where said fire was on the same road, and both places were on the road from Aspermont to appellants’ home. The next day after the burglary the night before, appellants were suspected of the crime. Along in the day they started home together in the buggy drawn by said two dun horses. The officers gave them some little start in advance, intending to pursue and watch them, which they did. Appellants drove rapidly from Aspermont to within a short distance of said old rock house, watching behind them to see if they were pursued, or any one was in sight. When they neared the old rock house, they slowed down to a walk and walked some distance until they got about opposite the old rock house. Seeing the officers approaching, and doubtless concluding they were watched and pursued, they again started up and drove a few hundred yards rapidly until they got a few hundred yards past the said rock house. The officers thereupon overtook them and searched their buggy, but found none of ttte: stolen articles, then released them. The officers returned to the old rock house. Appellants drove only a short distance from where they were first apprehended by the officers on to a place where they could see the old rock house and the officers’ movements thereabouts, and they stopped and there watched the officers. Upon returning to the old rock house, the officers found the tracks of two men going from the road to the house and returning from the house to the road. Upon searching the old house they then found three of the four stolen articles, and, seeing these tracks, they at once mounted their horses and again went in pursuit of appellants and caught and arrested them. They brought them back to the old rock house. They then made a more careful examination and measurement of the. tracks of these two persons that they had found going to and returning from this old house. They also required the appellants each to make tracks again, and they were measured, and their tracks then made corresponded exactly with these tracks already found, and there is absolute certainty that these tracks found by the officers going to and from the old house were the tracks of these appellants, and no other person or persons. They thereupon searched for buggy tracks and tracks of the team pulling it and found where this said dun team had been hitched to this fence and then turned around and driven back towards Aspermont. There can be no question from this evidence that these appellants had placed these three stolen articles in this old house the night before, driving this same team from Aspermont to this point and returning to Aspermont that night.

Appellants sought to show, and did show, that two other persons were seen in the town of Aspermont late in the evening of the night of the burglary, and had a dun team; but it was demonstrated that that team and neither horse of it could have made any of the horse tracks that appellants’ said horse did make at the various places stated above. They also sought to show, and did show, by various witnesses, that they were seen at various places in Aspermont during the night of this burglary. All this for the purpose of showing that they were not the persons who could have committed the burglary and theft, nor were they the persons seen at the fire and who carried three of the stolen articles to the old rock house. All this testimony could have been true, and yet the evidence is amply sufficient to show that they could have been seen at the various points where these various witnesses saw them, and yet have committed this burglary, been at this fire, and carried these articles to the old rock house, and been back in Aspermont when they- were seen by these various persons.

We again state that the evidence in this case is not only amply sufficient to show that appellants committed this burglary and theft, but that it demonstrates that they, and no other person or persons, committed it.

This brings us to the last question: Ought appellants’ said special charge to have been given? Unquestionably it should not. Their footprints and the measurement of theirs and the horses’ tracks was a link in the chain of circumstantial evidence;, the chain, made up of the whole number of links, unquestionably showed that they were the guilty parties. Appellants’ requested charge would pick out one link of this chain of evidence and tell the jury that that alone was not sufficient. If that had been all the evidence, the court should not only have given their requested charge, but should have given a peremptory charge to find the-defendants not guilty. If such a charge could even be claimed to be correct in a case like this, likewise the court could have taken up each and every other link in the chain of evidence and by a separate charge told the jury that that separate link alone was insufficient to sustain a conviction. Such piecemeal charges should, never be given in a case like this. The court, under the law, is required to charge the state’s theory, based upon the incriminatory evidence, just as much so as the appellant is entitled to a charge presenting his matters of defense when sustained by evidence. The court can no more in one instance than in the other pick out the several links in the chain of evidence and tell the jury each alone is insufficient to sustain a conviction, or to authorize an acquittal. No case can be found, decided by this court, where the several links in a chain of circumstantial evidence can be separated and .a charge given and sustained, telling the jury that that particular link alone would not sustain a conviction. None of the cases cited by appellant so hold. As an illustration: If the court could have singled out the evidence of the footprints and tracks and charged the jury that they alone were insufficient to sustain a conviction, so he could have told the jury that the fact that the depot had been burglarized, and certain articles stolen, could not alone sustain a conviction. And he could likewise have picked out another link — that these appellants were seen at this fire, alone, would not sustain a conviction. And .picked out another link- — that the finding of the three stolen articles in the old house alone could not sustain a conviction. Such several charges would have been an absurdity. One could be no more given than another, but the court should have charged, as he did, submitting the whole question upon the whole evidence to the jury for a finding.

The motion for rehearing in both cases will be overruled.


author: PRENDERGAST, P. J.

text:
    BREWSTER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied April 8, 1914.)
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Don Brewster was convicted of crime, and he appeals.
    Affirmed.
    W. J. Arrington and J. M. Carter, both of Aspermont, W. H. Murchison, of Haskell, and Chapman & Coombes, of Anson, for appellant. 0. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is a companion case to that of Roy Hahn, 165 S. W. 218, this day decided. Appellant in this case was convicted and his punishment assessed the same as said Hahn’s. The two cases and the testimony in each are as near identical as any two cases could be. There is no material difference one from tbd other.

There is no question raised in this that is not raised and decided in the Hahn Case. It is therefore unnecessary to further state or discuss any of the questions in this case.

The judgment is affirmed.


text:
    AUSTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    Rehearing Denied April 15, 1914.)
    Weapons (§ 7*)— Carrying Weapons — JUSTIFICATION.
    One informed that an indecent proposal had been made to his wife by a third person may not carry a pistol while going to see the third person to demand an explanation of hig conduct, though he is on a lawful mission.
    [Ed. Note. — Eor .other cases, see Weapons, Cent. Dig. § 6; Dec. Dig. § 7.*]
    Appeal from Polk County Court; P. R. Rowe, J udge.
    Jesse Austin was convicted of unlawfully carrying, a pistol, and he appeals.
    Affirmed.
    Holshousen & German, of Divingston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. • ■
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol. He contends that, if in fact he had a pistol on the occasion, he had been informed that George Johnson had made indecent and improper proposals to his (appellant’s) wife, which had been communicated to him, and he had gone to see Johnson to demand an explanation of his conduct.

It may be that appellant’s mission was perfectly legal and lawful, yet if all men were permitted to carry a pistol" when on a lawful mission, this would in effect work a repeal of the statute against carrying pistols, for nearly all men would, nine-tenths of the time, at least, under such construction, be lawfully authorized to carry a pistol. This court has never consented, and we cannot give our consent now, to thus nullify this provision of the Code. The court did not err in refusing to give the special charge presenting this phase of the case.

The evidence supports the verdict, and the judgment is accordingly affirmed.


author: DAVIDSON, J.

text:
    PARKER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    Ceiminal Law (§ 1090) — Appeal—Statement of Facts — Bill oe Exceptions.
    Rulings on the admission and sufficiency of evidence cannot be reviewed, in the absence of a statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent.. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Georgia Parker was convicted of burglary, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of burglary; her punishment being assessed at two years’ confinement in the penitentiary.

The record is before us without a statement of facts or bills of exception. Therefore the grounds of the motion with reference to the sufficiency of the evidence and- admission and rejection of testimony cannot be considered.

There being no revisable errors in the record, the judgment is affirmed.