118 S.W. 1054 | Tex. Crim. App. | 1909
Lead Opinion
Appellant was convicted of murder in the first degree and his punishment assessed at life imprisonment in the penitentiary.
Between twelve and one o'clock at night on November 5, 1906, in Rio Grande City, in Starr County, Judge Stanley Welch, district judge of that district, was assassinated in his room. The house in which he slept consisted of two rooms. Judge Welch occupied one and the district attorney the other. The homicide occurred on the night preceding an election. Judge Welch was at said city holding court at the time. Appellant and Jose Sandoval approached the window of Judge Welch's room where he was sleeping and remained standing there close together side by side for a short period of time. One of the two fired a shot into the house through the window where Judge Welch's body was found. He was shot from that point through the back. The evidence shows only one shot was fired in that neighborhood that night. The evidence shows that the wound that killed Judge Welch was fired from the window as indicated. Judge Welch's body was within four or five feet of the window inside of the room in the direction from which the shot was fired. Only one bullet hit the body. Cayetano Pena and his wife, Jesusa Gonzales de Pena, are the two witnesses who testified that they saw appellant and his codefendant fire the shot as above detailed. They furthermore testify they were sitting at their home some 120 feet away from Judge Welch's room and early in the night appellant and his codefendant passed by their house and they recognized them. Sometime thereafter, while they were still sitting, one in the door and the other on the bed looking out of the door in the direction of Judge Welch's window, they saw appellant and his co-companion approach and fire the fatal shot. They then saw them run away hurriedly from the window. They swore positively that it was appellant and his codefendant. If the testimony of the witnesses is to be believed as disclosed by this record the motive for the killing was political and appellant and his codefendant were the hired assassins of political enemies of Judge Welch, since there is nothing to suggest that appellant and his codefendant had any personal animus against the judge. No one knew that Judge Welch was killed until early the next morning, when the district attorney entered the room and found that he had been shot as suggested. Alarm was given, various parties gathered in, and after continued search appellant was sometime subsequently arrested in Old Mexico and brought back to this State on a proper requisition and tried for this homicide. The jury gave him murder in the first degree with life imprisonment. Pena and his wife testified that at the time that appellant and his codefendant passed their house, Judge Welch was sitting just inside of the east door of his room and there was a light burning in the room. Appellant and his codefendant passed on going to the north of the house in which *149 witnesses lived, then turned to the right and disappeared. Sometime after these parties passed, Judge Welch's light went out and his door was closed. About an hour after they passed the first time, the same two parties, coming from the same direction as before, walked up to the east window of the south room of Judge Welch's house and fired a shot. They did not know which fired the shot. There are other circumstances in the record that we do not deem necessary at this time to rehearse.
Appellant's first ground of his motion for a new trial complains that the court erred in failing to charge on circumstantial evidence. To support his contention he cites us to the following authorities: Early v. State,
The latest case that our attention has been called to, sustaining this modification, is the case of Dobbs v. State,
The fourth assignment of error complains of the following charge: "Do the facts and circumstances in this case show such a general disregard of human life as necessarily includes the formed design against the life of the person slain. If so, the killing, if it amounted to murder, will be upon express malice." Appellant insists that said charge is erroneous, because it instructed the jury as to a phase of the law and as to an issue not raised by the evidence in this case, and for the further reason that said portion of the court's charge was calculated to lead the jury to believe, and did lead the jury to believe, that in the opinion of the court this defendant was a dangerous and reckless person. This is simply an illustration used by the court to get the jury to understand what murder in the first degree is. Furthermore, the circumstances surrounding this case to our minds, do not show that the charge was not altogether pertinent to the facts. There is no error in the charge.
Appellant insists the court erred in refusing the following charge: "That there is no evidence before you showing or tending to show that the defendant ever saw or knew Jose Sandoval prior to and at the time of eleven o'clock p.m. of November 5, 1906; therefore, you are instructed that any act, acts, conduct or conversation of or with said Sandoval prior to said time of eleven o'clock p.m. of November 5, 1906, can not be considered by you in this case as in any way tending to criminate the defendant on trial herein." And in this connection appellant further complains that the court erred in failing to give the following charge: "That the testimony of Rufino Clark, Francisco Martinez and Rafael Moreno was admitted before you upon the statement of the State's counsel that the materiality thereof would be subsequently shown, but inasmuch as this has not been done, the court now instructs you that you will not consider for any purpose the evidence of either or all of said witnesses as to the whereabouts of Jose Sandoval, or his statements, acts or conduct, or as to the statements made to him by Gregorio Duffy or any other person, or to any message sent to him or received by him on said night (if they were sent or received by *151 him); said evidence must not be considered by you for any purpose whatever; and it is your duty as jurors to wholly disregard the same, exclude it from your minds, and try this case as though you had never heard it." The record shows that the court permitted Rafael Moreno to testify for the State that he was overtaken on the night of November 5, 1906, by Jose Sandoval, while riding on the road from Roma to Rio Grande City, at or about nine p.m., and that he rode with said Sandoval about a league in the direction of Rio Grande City; that he conversed with Sandoval, and that said Sandoval then left the witness and rode on ahead toward Rio Grande City. It is shown by Rufino Clark that he saw Sandoval at a ranch five miles below Roma, in Starr County, and on the road leading from Roma to Rio Grande City. This testimony was entirely germane and pertinent. The evidence for the State shows that the parties were acting together in the commission of this murder, and any evidence going to show that they were present or were probably present, one or each of them, or both, was germane and pertinent, and it follows, therefore, that the court did not err in refusing the above quoted charges. Where two or more parties act together any acts or declarations prior to the consummation of a crime that will illustrate the purpose and animus or probable co-operation of the parties in the commission of the crime, are admissible. The sheer fact that there was no testimony showing that the parties were acquainted prior to the night of the homicide, does not show that they did not act together. If they met for the first time on the night of the homicide, the testimony that he was going to where he met appellant would be clearly admissible. It would be only a circumstance to be argued to the jury to indicate that they did not.
The trial court permitted the district attorney, John I. Kleiber, to testify for the State that while he was in the city of Mexico, he saw this defendant incarcerated in the general jail in said city. Appellant objected to this testimony as shown by bill of exception No. 4 on the ground that same was irrelevant, immaterial and prejudicial to the rights of this defendant; and upon the further ground that it was not competent nor proper for the State to prove that this defendant had been in jail for this or any other offense. It was proper for the court to permit this testimony. It is a circumstance to show flight, or at any rate it could not prejudice the rights of appellant to prove that he was in jail charged with this crime.
The 12th error complained of was the refusal of the court to give special charge No. 3 asked by appellant, which is as follows: "Gentlemen of the jury: You are instructed at the request of the defendant as follows, to wit: That the fact (if it is a fact) that the defendant was extradited from the Republic of Mexico, or the fact that he did or did not undertake to defeat said extradition by *152
legal process or otherwise, can not be considered by you in this case, as in any way tending to incriminate this defendant. Every citizen has a right to appear before the proper officials and defend himself in an extradition proceeding, and the fact that he does so is not and can not be considered by you, as a fact or circumstance showing or tending to show his guilt or innocence, as to the crime with which he stands charged." It is contended that the court was in error in refusing this, because evidence was introduced to show that appellant while in the city of Mexico fought the extradition from the United States and resisted being returned from the asylum country. He asserts in the statement in his brief that exception was reserved to this testimony in his bill of exceptions No. 3 found on pages 31 and 32 of the transcript. An inspection of that bill does not verify this contention. There is nothing in the bill indicating that appellant fought extradition. The exception was reserved to the statement of district attorney Kleiber that he went to the city of Mexico on business connected with extradition of the defendant and there the bill ends so far as this phase of the testimony is concerned. It may be conceded, so far as this charge is concerned, that testimony was introduced that appellant fought the extradition, but in order to take advantage of this the defendant must object to the introduction of this testimony, and if the court overruled the objection appellant should have properly reserved his bill of exceptions, but this was not done, nor was a motion made to exclude the testimony subsequently. We find no bill of exception was reserved, but appellant seeks to use a special charge to meet his failure to except to the introduction of it. This can not be done. A charge can not be used to serve the office of a bill of exception in regard to the admission or rejection of evidence. Pippin v. State, 9 Texas Crim. App., 269; Thomas v. State, 16 Texas Crim. App., 535; Capps v. State, 40 Tex.Crim. Rep.; Nall v. Gates,
The 15th assignment of error complains of the failure of the court to give the following charge: "That the mere presence of the defendant at the time and place of the killing, if he was present, would not justify you in finding him guilty of the offense charged, *153 unless the State has satisfied your minds by competent evidence, and beyond reasonable doubt, that he (the defendant) knowing the unlawful intent of the party committing the act, aided him by acts or encouraged him by words or acts to commit such offense. And it would devolve upon the State to prove such acts by competent evidence, beyond a reasonable doubt, before you can convict defendant upon such evidence." The charge on principals in this case was very full. It covered every possible phase required under the law of this State. It told the jury in clear and succinct language that they must believe beyond a reasonable doubt that the parties were acting together at the time of the commission of the offense, and it was not necessary. Furthermore, there was no testimony that parties were not acting together.
Appellant insists the court should have charged the jury that they must not allow the fact that he is a Mexican to influence them in arriving at a verdict. There is nothing suggested in this record to require such a charge. Or a charge to the effect that they must not consider the bare fact that the deceased was a district judge.
The 17th and 18th assignments of error complain that the court erred in refusing to permit appellant to read a decision of this court, in the case of Francisco Gonzales, which shows that Jose Pena had authority to commission men to carry arms, and, further, to show that he had deputized appellant to carry arms on the day after the homicide. It seems that the State proved that on the morning of the 6th after the homicide and after the discovery of Judge Welch's dead body a large number of men, marching in file and headed by a band of music marched by and stopped in front of the house of the deceased, and that said men were accompanied by a number of armed men carrying rifles or Winchesters and pistols. Appellant insists that this testimony was calculated to impress the jury that the parties were unlawfully armed, and that this defendant was one of the parties. It was pertinent for the State to show that appellant, in company with others, was armed the next day following the homicide. The court admitted testimony to the effect that appellant was legally carrying arms in order to rebut the presumption created by the State's evidence, but we do not think a decision of this court holding that one Pena was authorized to issue a commission to bear arms was admissible under any view of the case. Nor do we think the testimony of sufficient moment to require the court to tell the jury that appellant had a legal right to bear arms on the day after the homicide.
The 22d and 23d assignments of error complain that the court erred in permitting John I. Kleiber to testify for the State, in substance and effect, that during the next day after the commission of the homicide, he sighted through the aperture where the slat was broken out of the shutter on the east window of the room in *154 which the deceased was sleeping and in which the body was found, on the morning of November 6, 1906, towards the body and wound of the deceased, and that the east window of said room was immediately behind the body of Judge Welch and immediately behind the hole in the back of said body. This testimony was admissible. The testimony of Dawson to the same effect was also admissible. The fact that the body had been removed and replaced would only go to the weight of the testimony.
The 24th assignment of error complains that the court erred in permitting the witness Dawson to testify for the State that the bullet which killed the deceased entered in the back near the right shoulder blade, and that the point of exit was the wound in front of the body, on the left breast. The bill shows the witness was an expert on gunshot wounds, and there was no error in admitting his testimony. The testimony of the witnesses as to the condition of the window blind and all other circumstances surrounding this homicide were admissible.
Bill of exception No. 14 complains that the court erred in permitting the district attorney to frighten and intimidate the witness Rafael Moreno. The qualification contradicts this contention.
The 31st error complains that the court erred in admitting before the jury the testimony of Cayetano Pena, a State's witness, over the objection of appellant, and upon the defendant's challenge as to the competency of said Cayetano Pena as a witness herein, it being shown by uncontroverted evidence introduced by defendant at the time said witness was offered by the State that he had twice been convicted in the United States District Court at Brownsville, Texas, of felonies, to wit: the crime of illicit retail liquor dealing, and the crime of receiving and concealing smuggled property, both in violation of the Federal Statutes for such cases made and provided, and introduced in evidence. Under the United States Statutes defendant might legally be punished by confinement in the penitentiary for a term greater than one year in duration, appellant urging the incompetency of said witness under the terms of section 3, of article 768, of the Code of Criminal Procedure of Texas. In the case of Reagan v. United States,
The 33d error complains that the court erred in permitting Cayetano Pena to testify for the State that he told his son-in-law, Pancho Trevinio, in April, 1907, what he (Pena) claims to have seen and heard on the night of November 5, 1906, pertaining to the murder of Judge Welch as shown by bill of exceptions No. 21. This testimony was objected to by appellant on the ground that it was irrelevant, immaterial and hearsay. Furthermore, that said Pena had not been impeached by any other witnesses at the time he was allowed thus to testify. But the record and bill does show that he was impeached by proving contradictory statements to the one sworn to in the trial of this case. Therefore, it was permissible to prove what he told his son-in-law.
The 34th and 35th assignments show the following: While the witness Jose Maria Gonzales, a witness for the State, was testifying, on cross-examination by defendant, in reply to a question, the witness stated: "There he is, ask him," pointing to the defendant at the time he made said remark. From this circumstance Mr. Seabury, counsel for the State, in his argument to the jury, undertook to impress upon the jury the idea that said witness Gonzales was an honest and truthful man, as shown by the remarks made by him, and his pointing at the defendant. The defendant said that said argument and conduct of said Seabury constituted and were in fact an indirect but exceedingly harmful allusion to the failure of this defendant to testify herein in his own behalf. The bill of exceptions in reference to the matters presents it as follows: While the witness was on cross-examination he was asked: "Q. What were the first words Cabrera spoke to you? A. In what direction was the shot? Q. What did you reply? A. I told him it was that way (indicating). Q. Is that all you said, just `that way?' A. Yes, sir, towards the courthouse. Q. Did you mention his name? A. No, sir. Q. Are you sure those are exactly the words he used? A. Yes, sir. Q. Then what did you reply to that? A. I told him, `No, it was towards that way.' Q. Is that all you said? A. That is what I told him. Q. You are sure that is all you said? A. Yes, sir. Q. Then what did he reply? A. He said, `We were drinking coffee when I heard the shot, and I do not know in what direction it was.' Q. He had just told you what direction he thought it was, had he not? A. Yes, sir. Q. Then he turned around and told you that he had been drinking coffee and did not know in what direction it was? A. Yes, sir; you can ask him, he is there present (indicating the defendant). Q. Did any other words at all pass between you at that time? A. No, sir. Q. Are you sure the words you have given here under oath are the exact words that passed? A. Yes, sir." During the discussion of the above facts by Mr. Seabury he referred to this incident in the trial of the case which had been *156 brought out by examination of appellant's counsel; whereupon an objection was immediately made that appellant had not testified, and the court passing upon this matter endorsed upon the bill of exceptions a complete and full statement of the facts and stated in his explanation attached to the bill that Mr. Seabury never referred to any matter that could be construed as intimating to the jury anything about appellant not having testified. In the light of the explanation of the court we can not hold it was an allusion to defendant's failure to testify. The bill is quite long and we have copied same as full as the length of this opinion will justify. There appears to have been no protest at the time the witness made the statement on the part of the defense counsel. The witness replies, "Yes, sir, there he is, you can ask him," but appellant's counsel never protested against it, and the attorney inadvertently repeated what the witness stated. We can not say that this violates the statute invoked in this case.
There is a long bill of exceptions in this record complaining of the argument of Hon. A.B. Davidson. In the light of the explanation of the court the argument was legitimate, or at least was a retort upon the argument made by appellant's counsel and provoked by them.
The 39th error complains of the misconduct of the jury in this: After the jury had heard part of the argument in this case, but before said argument was finished, and before the jury received the charge of the court herein, one Charles Lenz approached H.C. Huebotter, who was then and there a duly empaneled and sworn juror in this case, at or near the restaurant of said Lenz in the city of Cuero, Texas, and stated to said Huebotter that he (Lenz) had received a telephone message to the effect that said Huebotter's horse had run away with his buggy, in which his (Huebotter's) children were riding, and had torn up the buggy, and that the horse was badly cut up by barbed wire, but his children were not hurt, and for him not to be uneasy. Attached to the bill presenting this matter is the affidavit of the juror, but the district judge found as a matter of fact that said affidavit was untrue and the juror trying this case was in no way influenced by what occurred and the juror Huebotter had stated facts not true, and that the verdict of the jury was in no way affected by what occurred in the jury room nor what occurred in the presence of Mr. Lenz. To present these matters in detail would be unnecessary, since after a very careful reading of same we hold that the irregularities complained of were harmless to defendant and did not in any way jeopardize his rights or increase his punishment, pains or penalties. Other misconduct of the jury complained of by appellant has also been reviewed by us and we find no ground for reversal of the judgment by reason of such misconduct.
We have discussed with much candor and detail all the *157 assignments of error raised by appellant in this very voluminous record covering in all nearly one thousand pages, and feel constrained to say that a verdict in consonance with justice and with law and the procedure of this State has been secured. The record clearly shows that appellant, in conjunction with his codefendant, acting as a cowardly tool of a lot of political assassins killed the district judge of his district. That the evidence is as clear and cogent as it might be can not be said, but that it is sufficiently convincing to show to any fair mind that the appellant was one of the guilty participants in the assassination, we take it there can be no cavil about.
So believing and so finding the record, the judgment is in all things affirmed.
Dissenting Opinion
Dissenting opinions are usually in vain, and for the most part useless. I am always reluctant to dissent from an opinion representing the deliberate convictions of my associates and heretofore, in the few instances in which I have found myself unable to agree with them, I have done no more than to *164 briefly note that fact with as brief a statement of the substance of my own opinion as possible, but the importance of the questions involved in this case and that decent respect for the opinion of the profession which every judge should entertain, have constrained me to set out at length the particular reasons upon which my own opinion is based. I am sure if I write with earnestness it will be understood that it is without disrespect to the opinion of the majority and is due to the strong opinions which I entertain. In my judgment, and as I read and interpret the law the opinion of the majority overturns the ancient land marks of the law, is a departure from the settled rule in this court, and our Supreme Court for more than a half century, is wholly unsupported by any authority, and in the face of all the authorities and wholly without legal reason as a basis. If this opinion I so entertain is correct, I ought to dissent. As to whether I am right or wrong will be judged by the reasons given and authorities cited in this opinion.
What are the facts? Stanley Welch, Judge of the 28th Judicial District, was assassinated in Rio Grande City, Starr County, Texas, on the night of November 5, 1906. The general election at the time fixed by law was to be held on the next day, and there was and had been considerable political excitement in that section of the State, and particularly in Rio Grande City. The body of the lamented judge was found on the morning of November 6, between 7 and 8 o'clock. His death undoubtedly resulted from a gunshot wound, and he had apparently been dead for several hours when found. There was a bullet wound in his back, one in his breast and two wounds on his left arm evidently made by the same bullet. He was occupying, when killed, the south room of a two-room one-story brick house, the adjoining or north room being occupied by John I. Kleiber, the district attorney. To the east of the office building in the south room of which Judge Welch's body was found and at a distance of about 120 feet was a one-story building, one room of which was occupied by Cayetano Pena and Jesusa Gonzales de Pena, his wife. This last named house was situated upon a rise about seven feet above the elevation of the Welch house. The view from the two houses was practically unobstructed. There was no fence around the Welch house. To the north lay Third Street, 60 feet in width, upon the opposite side of which was what is known as the Priests' inclosure, occupying about a half block, and surrounded by a brick wall about seven feet in height. To the south of the Welch, house were vacant lots and then a small jacal. The county courthouse is situated at the head of Britton Avenue, about 500 feet north of where Judge Welch was killed. The Catholic Church is diagonally across Britton Avenue, northwest from the Welch house, and facing south upon the corner of Britton Avenue and Third Street. Two political meetings were being held in Rio Grande City on the night of the assassination. One meeting was held at what is known as the "Red Corral" or *165 club, where the Democratic adherents were gathered and the other at the "Blue Corral" or club, where Independent and Republican forces were assembled. The former was held in what is known as the old courthouse and the latter in what is known as "Juan Hinojosa's inclosure." The Rio Grande River runs approximately east and west at the foot of Britton Avenue, south of the courthouse and Welch house. The cot upon which Judge Welch's body was found lying was directly in front of, and at a distance of from four to six feet from the east window of his room. The south room was separated from the north room by a brick partition in which was a white pine door with a transom over same. None of the witnesses knew, or even suspected, that Judge Welch had been killed until between 7 and 8 o'clock on the morning of the 6th of November. There is no evidence in the record to show any motive whatever on the part of either appellant or Jose Sandoval to kill Judge Welch, except as same may be implied by the circumstances. We think the inference is fair that his death was due to political animosity, though there is nothing to show any special reason that his death should have been sought by either appellant or Sandoval. There is no evidence to show that either of said parties was personally acquainted with Judge Welch, nor was there any evidence to show that appellant and Sandoval were acquainted with each other or had ever met prior to the night on which the Judge was killed. Sandoval lived in Mexico and was a citizen of that Republic. Appellant had lived in that section many years and the testimony indicates that he was an adherent of the opposition party to Judge Welch, though he was not specially prominent in it, nor was there a hint in the testimony of any words spoken by him or to him touching Judge Welch. It is simply shown that there was an intense feeling and hostility between the factions and that he belonged to the Independents and later the fact that Judge Welch was killed. The testimony upon which a conviction was sought, except a few wholly incidental circumstances, rests in the evidence of Jesusa Gonzales de Pena and her husband, Cayetano Pena. There are many contradictions between these witnesses. They contradict themselves repeatedly, their testimony is contradictory as same was delivered on habeas corpus trial, and on this trial they contradict themselves and contradict each other. Cayetano Pena was shown to have been charged and convicted of more than one offense growing out of the custom laws and his wife, Jesusa Gonzales de Pena, is shown to have been a witness of such dense ignorance and incapacity as to almost stagger belief. She testified that she did not know how old she was; did not know the date of the birth of any of her eleven children; did not know the date of her own marriage; did not know how many windows there were in the front of the house in which she had lived at the time of the murder for a year; did not know what year it was at the time she testified; *166 did not know what month or day of the week it was upon which she was testifying, and did not know the year in which the shot was fired which killed Judge Welch. She also testified that she did not know what north, south, east or west was; that she did not know how to read or write, or tell the time by the clock or a watch. Her testimony, however, on this trial was to the effect in substance that on the night of the murder she and her husband were in the house above described; that on that night between 11 and 12 o'clock her husband was sitting in the door in a chair and she was sitting just back of him on the side of the bed; that there was a light in their room; that it was a beautiful moonlight night and that she could see from her door across to Judge Welch's door, and could see him sitting inside his room in front of the door; that there was a light burning in his room; that while she and her husband were sitting there and while Judge Welch was also sitting in his door, appellant and Jose Sandoval passed in front and within six or seven feet of the door where witness was sitting; that they were coming from the direction of the river, and were going toward the north. Witness knew them both well; that they passed along in front of the house, along the walk, and said nothing. That sometime after these two men passed, Judge Welch's light was extinguished and his door closed; that about an hour, more or less, after they passed the first time, witness saw appellant and Jose Sandoval coming from the same direction in which they had come before, but before getting in front of her door they turned off towards Judge Welch's office, and, walking upright and in a perfectly natural manner, walked to the window of Judge Welch's room; that when they got to the window they stood close together a few moments and then witness heard a shot fired, and that in a short time after the shot was fired appellant and Sandoval walked off in the direction of the priest's house. She did not know nor did she indicate by any hint in the testimony which of the two men fired the shot, though she testifies that the shot was fired at the east window of Judge Welch's room; that she did not see that either of the parties had a rifle or a pistol or arm of any kind on either of the two occasions when she saw them; that she heard no other sound, nor did she see the flash of any pistol or gun. She also testified that after the firing of the shot she suspected nothing wrong and did not know Judge Welch had been killed until she was so told the next morning. She testified, as did her husband, that they agreed that they would tell no one of the circumstances of the night before because they were afraid to do so, nor did they say anything about the fact to anyone until several months thereafter. Jose Maria Gonzales testified that he was living in Rio Grande City at a place between Judge Welch's office and the Blue Club; that he had been attending the two political meetings which were going on on the night in question and went home about 12 *167 o'clock and had partly undressed when he heard a shot in the direction of the Welch office and got up, dressed and walked out in the street near his house and met appellant and another man whom he did not know, coming from the direction where he had heard the shot; that appellant carried what witness took to be a rifle partly concealed under his coat. This witness had some conversation with appellant in which appellant said in substance that he was in the house at the time he heard the shot, drinking coffee; that witness saw these parties a block away, coming towards him; that they could easily have seen him and could have turned off at another street if they had so desired, but they came on toward him, walking at a natural gait, walked straight up to where he was in the street, and spoke in a perfectly natural way as they passed him, asking him in which direction was the shot. It was shown that a message had been sent to Mexico on November 5 for Jose Sandoval and the witness Clark saw him on this side of the river in Texas that evening about five miles from Roma; and he was on horseback and was at the time on the way to Rio Grande City. It was demonstrated to my mind by quite a number of circumstances that the shot which killed Judge Welch passed through the east window of his office entering the body in his back and causing his death. It is a fair inference, I think, from the entire record that the motive for this killing was political animosity due to the activity, as believed, of Judge Welch in respect to political differences between the two contending factions, and particularly to his refusal to grant the right to bear arms to the party of which appellant was a member. In this connection it should be stated that in a general way the testimony of Cayetano Pena supported that of his wife as to the movements of appellant and Sandoval as to the firing of the shot and their presence at the window when the shot was fired, and for the purpose of this discussion (whatever might be my own opinion as a matter of fact), it will be assumed that the evidence is sufficient to show that appellant and Sandoval were at the window of Judge Welch's house, and that one or the other of them fired a shot into said window. If this be true, and so much be conceded, two questions arise. First, whether or not, even if it be conceded that appellant fired the shot, it was a case of circumstantial evidence and should the court have given in charge to the jury an instruction in respect to that character of testimony? Second, the question whether while the evidence shows that one of the two parties committed the murder without showing which one of them and the other did nothing — that is committed no overt act and spoke no word as testified to by any witness — and that his connection and relation with the killing is to be gathered from his presence and other circumstances connected with the killing, was not a charge on circumstantial evidence required? It is well settled in this State where the case is one depending alone upon circumstantial *168 evidence, the court must charge upon that character of evidence, whether requested to do so or not. Hunt v. State, 7 Texas Crim. App., 212-238; Howard v. State, 8 Texas Crim. App., 53-59; Ross v. State, 9 Texas Crim. App., 275; Ward v. State, 10 Texas Crim. App., 293-298; Barr v. State, 10 Texas Crim. App., 507-515; Robertson v. State, 10 Texas Crim. App., 602-610; Wright v. State, 12 Texas Crim. App., 163-169; Gonzales v. State, 12 Texas Crim. App., 657-664; Ray v. State, 13 Texas Crim. App., 51-56; Wyers v. State, 13 Texas Crim. App., 57; Harris v. State, 13 Texas Crim. App., 309-318; Lee v. State, 14 Texas Crim. App., 266-270; Dovelin v. State, 14 Texas Crim. App., 312-314; Cooper v. State, 16 Texas Crim. App., 341-344; Black v. State, 18 Texas Crim. App., 124-130; Puryear v. State, 28 Texas Crim. App., 73-79; 11 S.W. Rep., 929. It is as well settled that where the case is not dependent alone on circumstantial evidence the court is not required to charge upon that character of evidence. Tooney v. State, 8 Texas Crim. App., 452-463; Buntain v. State, 15 Texas Crim. App., 515-520; Hunnicutt v. State, 18 Texas Crim. App., 498-523; House v. State, 19 Texas Crim. App., 227-240; Smith v. State, 21 Texas Crim. App., 277-308. These general principles are so well settled that the propositions need no discussion, and the rule seems to be recognized in the majority opinion. That this was a case of circumstantial evidence, judged by the decisions of this court heretofore, we shall hereafter undertake to demonstrate.
None of the cases cited by the court in the original opinion herein were cases of circumstantial evidence and none of them are in point in support of the conclusion reached by the majority except the case of Beason v. State, 43 Tex.Crim. Rep., which sustains, as I believe, my position. All the other cases cited in the original opinion of the court were cases of direct testimony, and in not a one of them was the testimony circumstantial. To establish this conclusion let us review the cases. The first case cited, Dobbs v. The State,
"The appellant in this case asked a charge on circumstantial evidence, and contends in that connection that, although the accomplice was present and saw the killing, yet, it being dark, and at the very time of the killing he being some little distance from the parties when it occurred, it was such a case as required of the court a charge on circumstantial evidence. The fact that the witness to the transaction was an accomplice, furnishes no reason why a charge should be given on circumstantial evidence, and at the time the fatal stroke was given he was so near and in such juxtaposition, though he may not have seen which one of the two parties inflicted the stabs and blows, several of which were fatal, yet, in the view we take of the case, it would make no difference, as to their guilt, which one may have caused the wounds." As above stated, the facts are not given in the Kidwell case, but in the companion case of Moffatt v. State, it is recited by the witness Lay as follows: "That after Pratt fell Moffatt and Kidwell came to where witness was standing, and said that they had killed Pratt. Kidwell had a dirk in his hand, carrying it with the point hanging down." So that it is obvious in this case that this was not a case of circumstantial evidence and has no sort of relevancy to the case under consideration here. The case of Holland v. State, 45 Tex.Crim. Rep., is still less in point. That was a burglary case. The evidence showed that one Schroeder, whose house was burglarized, had just left the room and closed the door, and that two or three minutes after this he went down stairs and his wife went up stairs to their room and he heard her scream. That when his wife reached the room she saw defendant in there. Here the fact that the door was closed is shown by positive testimony. The fact that the appellant entered the room and was in the room is shown by positive testimony. Appellant admitted being in the room, though he says the door was partly open and gave the explanation that he was looking for a closet. There is no discussion in this case further than a remark that the court did not believe the evidence was circumstantial as to the breaking, and hence it followed that the court did not err in refusing to charge on circumstantial evidence. The case of Polk v. State, 35 Tex.Crim. Rep., which is discussed at some length in the opinion on motion for rehearing is perhaps least, of all the cases cited, in point. There it unqualifiedly appears that the guilt of appellant was shown by positive testimony. Let us examine that case. Judge Hurt, speaking for the court, in the course of his opinion says: "There was positive evidence of the parties participating in the main act, the killing; and, if not, the facts were in such close juxtaposition as rendered such charge unnecessary." In the dying declarations of Rufus Jamison, the deceased, among other things, he says: "Mack Hughes was the one that shot me. I know this. There were several pistol shots fired. I don't remember how many though, but all the boys were *171 shooting. At the time of the shooting it looked as if Austin,Mack and Biz were shooting at the Parsons boys, who were with the girls, as well as me and the boys who were with me." So both the act of the shooting and the participation of all the parties in same was affirmatively disclosed by positive testimony, and this fact is expressly recognized by Judge Hurt, who was not likely to be mistaken in his opinion. Nor is the case of Adams v. State,
The facts of the case last cited are more fully set out in the opinion on the first appeal which will be found in the
These are the cases and all the cases cited in the majority opinion, and we submit that it will appear by reference to the brief resume of each case, and more clearly by an inspection of the original opinion that none of them are cases of circumstantial evidence, except the case of Beason v. State, supra, which was twice reversed because the court did not give a charge on circumstantial evidence. The opinion of the court, too, as we conceive overlooks this distinction. In the cases where it is said there was such juxtaposition in respect to the offense charged as to relieve the court of the necessity of a charge on circumstantial evidence, the nearness of the defendant was shown both in respect to the place of the homicide, as well as the time at which the offense was committed. Here the body of the deceased and his death was not discovered for many hours — six or seven at least — after the firing of the fatal shot as testified to by the witnesses. It is not shown except as an inference that the *176 deceased was in the room when the shot was fired. It is shown that he was in his room a short time before the firing of the shot and it is shown that his dead body was lying on his couch many hours thereafter. It is not shown that the persons who fired the shot in the window knew the exact spot where he slept or could see his body or knew they had killed him. While the circumstances may point, as I believe they do, very strongly to the fact that he was shot through the window on the east side of the house, after all, strong as the evidence is, it can not be denied, I think, that it was circumstantial. It is not the weakness or strength of the testimony which required the court to give a charge on circumstantial evidence, it is the character of the testimony and not its quantum, and whether in any given case the evidence is weak or strong does not in any sense change the rule. This is abundantly demonstrated and sustained by all of the authorities. It will be unnecessary to quote many of them. We shall make liberal extracts from a few of the cases so as to illustrate our views and support our position. Among the earliest cases is that of Puryear v. State, 28 Texas Crim. App., 73. In that case our brother Brooks had the honor to be counsel. The testimony of the State rested largely upon the evidence of Essie Puryear. After stating that the appellant was the father of the child and that no one was present or lived in the house except Puryear, she then states: "On the morning of the 13th day of March, A.D. 1888, I gave birth to a child; it was near daylight and no one was present but defendant. I told him before the birth of the child that I couldn't stand it by myself, but he said I could stand it without some one as well as with them. While I was giving birth to the child the defendant pressed on my knees, and he delivered the child. There were three rooms to my house, one room being upstairs, and two downstairs. The child was born downstairs in the front room. After he delivered the child he went to the fireplace to get a string to tie the cord. The baby cried, and I called the defendant to come and tie the cord. He then came and took the child upon his left arm, and took it out of the room into the side room, and I heard him pouring water on something, and then he came back into my room, and I asked him where the child was, and he said he had it `out there all right.' I asked him where, and he replied, `out there in the water' The defendant then made up a fire, went into the side room and returned with the child between some wood. I saw it, and asked him what he was going to do with it, and he said he would burn it. He then put the wood and baby into the fire, and I said, `Oh, John, don't do that.' The child did not make any noise, and had made none since he had carried it out of the room. I had heard him pouring the water out in the side room after he took the child out there. When defendant threw the child and wood in the fire, and I said, `Oh, John, don't do that,' he did not make any reply, but turned *177 towards me and smiled. I was flooding at the time, was very weak, and said nothing else about the child at the time. After a little I told defendant to get me some water — that I was flooding. He kept a large fire all day, and kept the door shut and the window curtains down. It was a warm morning, and defendant was in his shirt sleeves. His shirt was patched at the elbow. The shirt was originally blue, but had faded until you could not tell its color. He kept this shirt on until Sunday morning, when he pulled it off. He got some blood on the left sleeve of his shirt close to the wrist." Here was juxtaposition, presence, participation, everything except that the witness was in one room and the child was in the other at the time of the murder, but a moment intervening; it lacked nothing of being positive evidence except to see the bloody murder with her own eyes, and yet in that case it was held that a charge on circumstantial evidence should have been given. In the course of the opinion Judge Hurt uses this language: "It will be readily perceived that if killed at all the child must have been drowned or burned to death, the circumstances tending strongly to show that its death, if it was killed, was caused by drowning. If drowned, we have a case testing purely upon circumstantial evidence. If burned to death, we have a case of positive evidence — assuming that the child was living when placed on the fire. If it was not living when placed on the fire, then the theory that it was burned to death is not in the case except as the fact that the body was thus disposed of may tend to show express malice, assuming that defendant had murdered the child by drowning it.
"Back then to the question as to the methods by which the child was killed. If drowned, then a case of circumstantial evidence. The facts demonstrate this proposition. Being a case of circumstantial evidence, the rules applicable to such a case should have been given in charge to the jury. This was not done, though such instructions were prepared and requested to be given by counsel for defendant. This was error, unless it is absolutely certain that the child was burned to death. Was this the case? By no means, for the proof tends more strongly to show that it was drowned. Essie Puryear does not state that the child was living when placed on the fire. If the child was living when placed on the fire this fact is established by circumstances, and hence we have a case of circumstantial evidence upon either theory relied upon by the State. But let us concede for the argument that the circumstances — the facts — were in such juxtaposition that they amount to positive proof that the child was burned to death, still the theory that it was drowned might have been adopted by the jury, and the defendant convicted upon that theory, without proper instructions upon the rule applicable to a case depending upon circumstantial evidence." This case has been frequently referred to with approval and was in express terms *178
approved in the case of Leftwich v. State,
On the general proposition that the whole case here, and this without reference to who fired the fatal shot, makes it a case of circumstantial evidence under the authorities, could be demonstrated, as I believe, by the citation of innumerable authorities, but the language and facts of the cases cited above would seem to be sufficient to support the correctness of my opinion. But there is even stronger ground upon which the court was required to submit a charge on *181
circumstantial evidence, and that rests on this theory: In this case there is no pretense or claim or hint of any statement that appellant and not Sandoval fired the shot which killed Judge Welch, if they did kill him. The statement is that one of them fired a shot through the east window of his residence. Which one? Can the court say? Should not the jury be left free to determine this fact under the evidence? If it be true, as our learned presiding judge says, that our whole criminal jurisprudence rests and must be construed with reference to the presumption of innocence and the doctrine of reasonable doubt, should it not rather be assumed that Sandoval fired the shot, in submitting the law of the case? Was appellant not entitled to a submission with reference to the presumption in his favor, and not on an assumption conclusively assuming the worse state of affairs against him? Is it not evident that in a case where it is absolutely in doubt which of two parties fired the shot that the case is no stronger against appellant than if the positive testimony had showed that Sandoval did the shooting? Or if this much can not be conceded, is it not evident in any event that in submitting the law of the case, appellant was entitled to a charge based on the theory most favorable to him and which would authorize the jury in the event they found this theory to be true to apply the undoubted law to the facts of the case? Is this not more clearly demanded where there is no evidence or motive except one of political hostility shared by hundreds of people in common with the person charged? Ordinarily in determining whether a case is one of circumstantial evidence, it has been found that it was only one person charged and but one of the elements suggested above entered into the question. Ordinarily the only question is, was the shot the cause of the death and appellant's connection with the shot shown by positive testimony and was he the person shown to have been guilty of a criminal act? In this case both the questions occur. In the first place, in addition to the question that whoever fired the shot, the facts showing the killing, are not positive, but if appellant did not actually fire the shot his complicity rests alone on circumstantial evidence. Let us assume that the jury might have found that Sandoval fired the shot. Then how is appellant's guilt shown? There is no suggestion in the testimony of these Mexicans that one word was spoken by these parties. That the person who did not fire the shot raised his hand or his voice, or did one act or made any possible demonstration. If appellant did not fire the shot, then his guilt rests upon these circumstances: that he belonged to a political party adverse to the deceased; that he was seen in the hostile camp with Sandoval about 11 o'clock; that he was twice seen at the house of Cayetano Pena late that night; that he was traced to the window of the deceased and was later seen by Gonzales walking along the public street, with such additional force as the jury might lend to the circumstances of his open *182
departure for Mexico six months after the tragedy. It is not to be denied that these circumstances are indeed strong if the testimony of Cayetano Pena and his wife is to be believed. But that the testimony is circumstantial is to my mind so demonstrably clear as to not admit of doubt. On this question fortunately we are not without the benefit of the learning of many courts, and especially decisions by this court, so clear and so conclusive as that no man ought to be able to err. Among the controlling cases and the most recent one, is that of Early v. State, 50 Tex.Crim. Rep., 97 S.W. Rep., 82, in which the opinion was written by our brother Brooks. In that case Jack Early and Harmie Horn were indicted for the murder of one Terrell Calloway. I want to contrast and put, as it were in parallel columns the facts of the two cases. In that case Horn and Early were close friends. In this case appellant and Sandoval were strangers. In that case Early and Horn were together, not only on the night of the homicide, but were together from early in the afternoon. In that case threats were shown by Early against Calloway. In this case not a word was spoken hostile to the deceased. In that case bitter enmity and hatred were shown on the part of Early towards Calloway. In this case they were strangers. In that case Early was shown on the ground where the fatal difficulty occurred. In this case the same fact was proved. In that case there was an immediate flight. In this case appellant stayed for six months near the scene of the homicide, and when he did leave there was no secret of his going. Not only this, but the witnesses say in the Early case that two men were seen near where Calloway lay. Let us quote the record: "Nelson had retired and gone to sleep, and was aroused by a noise on the outside. The first thing he heard was some one saying, `That will do; let him up.' He then looked out of the window, and saw the bulk of men out some distance from the office, one standing up and another in a low position. The man standing up was moving about a little and he could tell that it was a man. The other object in the low position he could not tell whether it was one or two men at that time." The evidence in this case showed, as the record puts it, that Calloway had been literally cut to pieces. The evidence in respect to the weapons was as follows: "Appellant and Horn were each shown to have owned a large spring-back knife, with blades three or four inches long." Again, we find the following statement fixing Early undoubtedly on the scene: "Appellant was shown to have worn on the night of the difficulty a hat with a yellow leather hat band." The evidence further shows that the struggle extended over a space of ground twenty or twenty-five feet in length and from four to eight feet wide. And further that the leather hat band of appellant was found upon the ground where the evidence of the struggle was shown. This further statement appears in the record: "The feeling of appellant toward deceased was one of malice, bitterness, *183
and hatred." This statement also appears: "On the very night of the difficulty, while appellant and Harmie Horn were at the depot, waiting to take the train for Axtell, they had a conversation with John Stirman, in which conversation appellant used this language: `We don't like Calloway. He has not treated us right.'" The evidence in that case further shows that at the time of the difficulty Horn was in an advanced state of intoxication and raises some presumption that his condition was such as to render it unlikely that he had inflicted all the injuries found on Calloway's body. In that case it was urged that the court should have charged on the law of circumstantial evidence and in passing on this assignment, Judge Brooks says: "The evidence for the State shows appellant was at the scene of the homicide. This is made manifest by circumstantial evidence as well as by appellant's confession. But there is no positive
testimony of any guilty participancy by appellant in the homicide. Appellant expressly disclaims any participancy, and the fact that he assisted in the commission of the crime, if established, is by circumstantial evidence alone. This being true, it was the duty of the court to charge the law of circumstantial evidence. Jones v. State,
There is another error in the record, as I believe. On the trial counsel for appellant requested the court to charge the jury as follows: "That the mere presence of the defendant at the time and place of the killing (if he was present) would not justify you in finding him guilty of the offense charged, unless the State has satisfied your minds by competent evidence, and beyond reasonable doubt, that he, the defendant, knowing the unlawful intent of the party committing the act, aided him by acts, or encouraged him by words or acts to commit such offense. And it would devolve upon the State to prove such acts by competent evidence, beyond a reasonable doubt, before you can convict this defendant upon such evidence." This charge, I think, under the facts of this case should have been given. That the mere presence of the defendant at the time and place of the commission of an offense will not justify the jury in finding such defendant guilty of the offense in question as a principal, unless the evidence shows beyond a reasonable doubt that such defendant, knowing the unlawful intention of the party actually committing the act, aided him by acts or encouraged him by words or acts to commit such offense, is not only elementary and reasonable and sufficient within itself, but is abundantly established by the following authorities: Schulee v. State, 35 S.W. Rep., 375; Leslie v. State, 42 Tex.Crim. Rep., 57 S.W. Rep., 659; Red v. State, 39 Tex.Crim. Rep., 47 S.W. Rep., 1003; Mitchell v. State, 36 Tex.Crim. Rep., 36 S.W. Rep., 456; Franklin v. State, 76 S.W. Rep., 473; Parks v. State, 79 S.W. Rep., 537; Faulkner v. State, 43 Tex.Crim. Rep., 65 S.W. Rep., 1093; Chapman v. State, 43 Tex.Crim. Rep., 65 S.W. Rep., 1098; Renner v. State, 65 S.W. Rep., 1102.
As stated in the brief memorandum filed by me at the time the original opinion was handed down, it is not certain but that there are other errors for which the case should be reversed, but this opinion is already so long that I forbear to discuss the other questions. I do not need to say that the personality of the appellant in this case has not to the extent of a hair's breadth affected or influenced my decision. He is no more to me, nor I to him, than Hecuba was to Hamlet's players. I am concerned alone in the law and its proper administration. It is the pride and glory of our law, it ever has been, and let us hope it ever will be, that all men are equal before the law. One law and one Lord over all. I do not believe that appellant has been tried and convicted in accordance with law *188 and therefore feel constrained to enter my dissent and to set up the ancient and well settled principles of the law as I have learned them from the master builders of our profession.
Addendum
I am not prepared to agree to the judgment of affirmance. It seems to me that the court should have charged the law of circumstantial evidence. Again, I am inclined to think that the special charge No. 10 requested by appellant's counsel should have been given. Nor am I sure there are not other errors in the record. I may write my views later.
Addendum
This case was affirmed at the recent Dallas Term, and now comes before us on motion for rehearing.
The first ground of the motion is that this court erred in finding, as a matter of fact, that Cayetano Pena and his wife testified that they "saw appellant and codefendant fire the shot" alleged to have killed the deceased. If appellant's counsel had construed the opinion as a whole, as all opinions must be construed, they would have seen that this criticism was both gratuitously incorrect, since it will be shown by a reading of the opinion that the following statement is therein made, to wit: "Judge Welch was at said city holding court at the time. Appellant and Jose Sandoval approached the window of Judge Welch's room where he was sleeping and remained standing there close together side by side for a short period of time. One of the two fired a shot into the house through the window where Judge Welch's body was found. He was shot from that point through the back." Further along in said opinion will be found the following statement: "Only one bullet hit the body. Cayetano Pena and his wife, Jesusa Gonzales de Pena, are the two witnesses who testified that they saw appellant and his codefendant fire the shot as above detailed." Further along in said opinion appears the following: "They saw appellant and his co-companion approach and fire the fatal shot." The latter statement when construed in the light of the two previous statements show that appellant's *158 criticism is hypercritical, since this court never attempted to say, nor does it now understand, the record to be that appellant himself fired the shot that killed the deceased, but the evidence does conclusively establish the fact out of the mouth of the two above named witnesses that appellant in direct co-operation with Sandoval was present when the shot was fired that killed the deceased through the window about twelve o'clock at night, and they either walked or ran away together after said shot. It is immaterial whether they ran or walked away. They left. They were at the house at an unseemly hour. They had previously approached the house and seeing deceased sitting in his door disappeared, and a short while after deceased's light was blown out or turned out, then they approached the window, as stated, and fired a shot into the back of the deceased, according to the testimony in this record. The witnesses did not say, nor does the opinion of this court say, that the witnesses stated which one of the two defendants fired the shot, nor does it matter under the law of principals which one fired the shot. Appellant further insists that both of the State's witnesses testified that they did not see any weapon whatever in the possession of either appellant or Sandoval, upon either of the occasions testified to by said witnesses; moreover, said witnesses testified that they did not see the flash of any pistol or rifle shot at the time they claim to have heard the shot fired by either appellant or Sandoval. The testimony of the witness Cayetano Pena, found on page 492 of the statement of facts, in reference to the immediate facts of the shooting, is as follows: After testifying that he saw appellant and Sandoval together a short while before the killing, he then testified as follows: "The second time that I saw these two men come by my house that night, they were going this way (indicating by reference to map). This is the corner of my house, and this is the house of the judge (indicating); when I saw these two men there the second time that night, they went this way (indicating) to the window of the judge's room. After they got to the window and the shot was fired, they went this way (indicating by reference to map). I did not see any pistol or gun on either of these two men when they passed my house either time that night. When the shot was fired I did not remain sitting in the door. I went to the window; I went to the window in that same house of mine. After I had opened the window my wife stood at my back behind me. My window there had a blind on it. When I went to the window the blinds were shut. When I got to the window I opened it, opened one of the shutters. When they fired the shot I was at the door. At the time I saw them go to the corner of the priest's yard, the wall. I was at the window. When these two men left the corner of the house in which I lived and went to the window of Judge Welch, they went in a natural walk side by side. Before they fired the shot, they remained at Judge Welch's window very little, hardly any time, *159 and they just stood there a few moments after they fired the shot." Furthermore, the witness testified: "The window into which I saw this shot fired was the first window on the part towards the river. After the shot was fired they went steadily away; they went in an ordinary pace, that is what I saw, that they went in an ordinary pace. I did not know that night that Judge Welch had been killed." Now, as to whether the witness means by saying "they went steadily away" from the scene of the homicide, that they ran or walked, as stated above, becomes utterly immaterial. They left the building together; they went there together. They went at a time when no possible inference of innocence could be attached to either, at the dead hour of the night, walking together up to the window, one of the two fired a shot into the house, the deceased lying a few feet from the window; the mark of the weapon from which the fatal ball was fired was impressed on the window blind and on a direct line, as the witnesses testify, with the back of the deceased and that the hole in his back was made by the bullet, the bullet having passed probably through his heart.
The second ground of the motion complains that the court erred in finding as a conclusion of fact that said Cayetano Pena and his wife saw appellant and Sandoval run away hurriedly from the window of Judge Welch's house. The last statement above made answers this criticism upon the opinion of this court.
The third ground of the motion is that the court erred in its conclusion of fact that "if the testimony of the witnesses is to be believed as disclosed by this record, the motive for the killing was political, and appellant and his codefendant were the hired assassins of the political enemies of Judge Welch." Appellant insists that this conclusion of the court is absolutely unsupported by and contrary to the record facts and urgently requests this court to set out such of the testimony of the witnesses as this court considers to be sufficient to prove that appellant was the hired assassin of political enemies of Judge Welch. Appellant further submits that this court has given a most lame and impotent reason for this finding of fact, viz., because there is nothing in the record to suggest that appellant and his codefendant had any personal animosity against the judge. Appellant further states that upon reflection this court must see the weakness of that position. This record contains something over one thousand pages. The opinion in this case had to be gleaned from over five hundred pages of statement of facts, and in sheer deference to the fact that appellant insists that the court erred in its conclusion of fact that the motive for the killing was political, will now state the substance of the evidence that we think suggests the motive for this killing. To do so in detail would make the opinion unnecessarily prolix and tedious. The evidence shows that appellant belonged to a political organization in the county of the homicide at variance with that of the district judge whom he assassinated. *160 The party with whom Judge Welch and the district attorney affiliated and appellant's faction or party were each holding a political meeting on the night of the homicide. Judge Welch had been appealed to by one of the adverse factions to appoint part of said adverse faction deputy sheriffs to keep the peace on the next day, which was election day. This he positively refused to do. The record shows that after his death appellant, armed by some authority, marched by and stopped in front of the judge's office where he was killed, in company with many of his companions, about seventy of whom, if this record is to be believed, were armed. In fact, one bill of exceptions in this record complains of the action of the court permitting the State to prove this last fact. We did not mean to say, nor do we now state, as a matter of law, that the reason was political, but no other conclusion can be reached by the candid mind in reading this record other than the fact, as stated in the original opinion, that appellant was the hired assassin of political enemies, since the record discloses that appellant and the deceased were unknown to each other, or at least that they had no sort of bickering, misunderstanding or personal animosity one to the other. The record is replete with various circumstances showing the most intense animosity existing among the crowd that appellant ran with against the judge and his efforts, as he conceived them, to enforce the law. We are not here called on, nor are we attempting, to pass upon the justness of the insistence, nor are we intimating the illegality here of appellant's insistence from a political standpoint. With those matters we have naught to do, and care less. Therefore, if appellant had no personal animosity, conceding him rational — and no plea of insanity was interposed for him in this case — and the record being full and replete with suggestions of political animosity, the killing occurring at the dead hour of night, when the victim was asleep, can not be designated otherwise than as an assassination. Then the evidence showing to our minds conclusively that appellant committed the assassination, and political animosities being rife and manifest from a careful inspection of this record, we can not ascribe the motive to any other reason than as stated, and we reiterate and here state that it is apparent to this court that the basis and motive for this homicide and assassination was political. In addition to the above detailed facts we make this addition thereto as demonstrating a clear and rational basis for the conclusion stated in the original opinion, that the motive for this killing was political. Appellant and companion were seen at the meeting or headquarters of the political faction with which they affiliated and opposed by the faction with which the deceased affiliated before the killing. The deceased commissioned members of his side and had refused to authorize those of the opposing faction to act as police or go armed the following day — election day. Appellant and his companion were seen and talked to by Gonzales just after *161 the killing. Appellant claimed the shot was fired in the direction of headquarters of his faction while Gonzales said the shot was fired in the direction of deceased's room. That appellant then had a gun concealed, only the barrel of which could be seen by Gonzales during the conversation; that they separated, appellant and confederate going towards headquarters where he, appellant, was subsequently seen.
The fourth ground of the motion complains that the court erred in its conclusion of fact that after continued search appellant was sometime subsequently arrested in Old Mexico. The record shows, as appellant insists, that he remained in the county where the homicide occurred for sometime after the homicide, and that he did not leave there for Mexico until after the adjournment of the District Court of Starr County for its spring term, 1907. It is furthermore true that the principal witnesses against appellant, viz., Cayetano Pena, his wife and Jose Maria Gonzales, lived in Rio Grande City, the place of the homicide; but the record does show, and this is the only statement we were attempting to make, that appellant was captured after continued search in Mexico and extradited and brought back to Texas, he resisting arrest and doing all he could to escape being brought back to Texas. This is the only thought we meant to suggest and the only legitimate conclusion that could have been drawn from the statement in the opinion.
The fifth ground of the motion complains the court erred in finding that the trial judge committed no error in failing to charge on circumstantial evidence and in refusing to charge upon circumstantial evidence, and feels that when this court begins to discuss those cases and attempts to state just why they are not in point upon appellant's contention here, the court will reach the conclusion that it erred in its original finding upon this question of law. In the first place, as stated in the opinion rendered in this case on habeas corpus, 53 Tex.Crim. Rep., 110 S.W. Rep., 898, the court unanimously held that the testimony of the State is positive and unequivocal that relator in company with another killed deceased by shooting him through a window at night. We have reexamined all the authorities that appellant cites, together with a great many other authorities, and have no occasion now to change our opinion that this is not a case of circumstantial evidence. This case was tried by the court below under the guidance of the habeas corpus opinion which stated that the evidence was positive, and while we would not hesitate to reverse, if we thought we were in error, still after a thorough and careful review of all the authorities, we hold, as stated, that it is a case of positive testimony. In appellant's motion for a new trial he insists that none of the authorities cited support this court in the previous opinion. In the case of Polk and Watts v. State, cited in the original opinion, we have a *162
case, as we think, exactly in point with reference to the facts of this case. The dying declaration of the deceased covers all the salient features of the State's testimony, and from it we quote. After stating he went to a literary society at the church, he then says: "After the exercises broke up the two Parsons boys got company and started home, the balance of the boys, including myself, followed along behind them, so we could get together after they took the girls home. The reason why we did this was because we feared something would happen. After we left the church we saw three boys coming behind us, and we stopped to see who they were, and they passed us on the other side of the street, and I saw who they were. They were Austin Polk, Biz Watts and Mack Hughes, who had one eye. They walked on ahead of us for some piece, and after they had passed us they got on the same side of the street we were on, but kept ahead of us, and we saw them turn out of the road into some bushes, in a run, when they stopped. At this time we were about fifty feet from them, and I heard them snapping what sounded like a pistol. I told Mack not to shoot, that it was me. Mack jumped up and started to run, and as he did, all three of the boys commenced shooting. I could tell that Mack, Hughes was shooting at me, but could not tell which way Austin and Biz were shooting, but think they were shooting at the Parsons boys. I was looking at Mack Hughes, and had been talking to him before he shot me. Mack Hughes was the one that shot me. I know this. There were several pistol shots fired. I don't remember how many though, but all the boys were shooting. At the time of the shooting it looked as if Austin, Mack and Biz were shooting at the Parsons boys, who were with the girls, as well as me and the boys who were with me." Now, the above is practically the State's case against the appellants Polk and Watts, the decision now under consideration. Mack Hughes was tried separately. The record does not show what was done with his case. Now, a casual reading of the above statement, and certainly a full reading of the decision last cited, will show that the deceased did not swear that appellants Polk and Watts shot him at all, but swears positively that they did not. The evidence further shows that it was dark. He had seen these two defendants go into the woods with Mack Hughes, and Judge Hurt found that it was not necessary in the trial of these two defendants to charge on circumstantial evidence, using in that connection the following language: "There was no error in omitting to charge upon circumstantial evidence. There was positive evidence of the parties participating in the main act, the killing; and, if not, the facts were in such close juxtaposition as rendered such charge unnecessary." See also Kidwell v. State,
So believing, the motion for rehearing is in all things overruled.
Overruled.
