Cabrera v. State

Cabrera The State. v. 1909.1 No. offered the following 2 shows that appellant Bill of exceptions had had shown the defendant internal After the testimony: State witness, State’s offered to show the license the defendant revenue time, transaction, before after Couch, C. about J. that from or other intoxicants he, witness, buy the had tried to beer that sell him uniformly had defendant, and the defendant refused the vio- would not intoxicants, or other witness he uniformly beer told laws, have testi- late the local to all of the witness would option which same that fied, but the State reason objected testimony to said for the immaterial, Appellant’s and the court the objection. sustained show for reason objecting that was admissible defend- that said license were in enable fact for and not to protection, law, prima ant to violate the local show license would option they clearly facie were obtained. This inadmissible. evidence was in vio- whisky would one man have refused sell fact where any lation the local law would material option not prove else. he was tried for to someone selling violation of the law in sufficiency are only These questions except record We find the evidence. evidence is sufficient. judgment affirmed.

Affirmed. Alberto The State. 3, 1909. February

No. Decided 4504.

Rehearing May Denied 1909. —Murder—Charge Evidence—Juxtaposition. of Court—Circumstantial 1. showed upon for murder evidence trial defendant was Where homicide to exclude other issue juxtaposition such than charge upon circumstantial testimony, evidence was not required. require facts do not evidence. See for dissenting. Ramsey, Judge, —Same—Charge Court—Express Malice. 2. upon surrounding trial for murder circumstances Where case did altogether pertinent of the court was not not show that is, facts, illustrated what murder the the first there was no simply degree jury general dis- charging if the circumstances showed such error necessarily design against life regard of human life as included formed slain, killing ex- person if it amounted to murder would malice. press Court—Conspiracy. —Same—Charge of 3. the defendant and the evidence showed that Where trial murder homicide, any tes- person acting together in the another were commission present, present one they probably or were timony or each refusal to cide parties, show going to were both, there was error court’s germane, of them or the homi- acquainted prior parties if the charge that acts, of said of certain conduct or conversation to exclude the consideration material; ground homicide and on prior were not were material. showing record 56 Texas Criminal —Same—Evidence—Flight. 4. Upon trial for murder there admitting testimony was no error in jail Republic defendant was seen in of Mexico some after homi- time the cide; prejudice testimony rights besides such could not the of the defendant. —Same—Charge Exceptions—Extradition. of of Court—Evidence—Bill 5. except murder the defendant failed to to the upon trial for testi- Where by City that defendant of mony introduced the State while Mexico re- States, refusing to court did- not err in de- sisted extradition the United the except to the special charge to meet his failure introduction of fendant’s testimony, jury that could not consider the such to the effect same. Court—Principals—Special Charge —Same—Charge of 6. Refused—Intent— Evidence. Circumstantial upon among things, trial for murder the other showed Where that companion and together up the defendant walked to the window of the deceased, only occupant, a where had retired for night room of and was house window, and lying midnight, a few feet from the about one of (it room, a into not shown that defendant the next being two fired shot) shot fired such early morning place found dead at said the deceased was evidently coming from a line by a hole in his back made bullet direct window, etc., charged fully principals and the court on the law of of said it facts, no error in the court’s refusal of defendant’s applied there was guilty proved, found unless the State special charge that defendant could time; etc., defendant, acts, criminal intent of defendant at the or in Ramsey, Judge, dissenting. evidence. charge on circumstantial failing to Standing. —Same—Charge of Court—Social 7. testimony the defendant was murder the disclosed upon trial for Where required judge, the court was not a district and deceased a Mexican arriving them in this fact to influence jury should not allow verdict. Court—Evidence—Right —Same—Charge to Bear Arms. 8. testimony on the introduced murder the State upon trial for Where men, the de- including armed large number of homicide after the morning fendant, lay, headed body of the deceased house where the marched permit refusal to defendant in the court’s was no error music, there a band carry arms deputised to defendant was of this court read a decision to on the such had homicide, the defendant jury or to day after right. —Same—Evidence—Range of Bullet. 9. introduce the State to permitting was no error in murder there trial for Upon the slat where aperture sighted—through witnesses testimony that deceased room, in which the the east window of a shutter on out of broken body morning—towards body was found next in which sleeping and body; immediately said deceased, behind said window and wound replaced. removed and been body had although said Bullet—Expert. —Same—Evidence—Range 10. by the testimony admitting error in was no there trial for murder Upon killed bullet which range of the showing the witness expert an State deceased; shot was which the through blind the window the condition the homi- surrounding fired, all other circumstances to have been supposed cide. Exceptions. - Attorney—Bill Prosecuting 11.—Same—Conduct of the trial qualification of murder a conviction appeal from upon Where district permitted the contention appellant’s judge contradicted witness, was no error. there defendant’s and intimidate attorney frighten Turpitude of Witness. 12.—Same—Evidence—Moral had been witness a State’s appeared murder trial upon Where State. '1909.] liquor dealing smuggling convicted illicit retail under the Federal Statute, neither of which offenses were felonies under the decision of the Su- States, preme United disqualified Court of the said witness from tes- tifying against defendant. —Same—Evidence—Impeachment 13. of Witness: Where trial for murder testimony the State’s witness was attacked the defense’s to show that he had contradictory made a statement trial, to that to permit made on error State show that said had witness made same statement before the trial. Testify—Argument 14.—Same—Evidence—Allusion to Failure Defendant’s of Counsel. Where trial for murder a State’s witness on cross-examination remarked, pointed is, defendant to the defendant and “there he ask him!” and State’s counsel alluded to said argument impressing incident in his while upon trial jury truthful, the idea that said witness was honest and the judge explanation in his appellant’s exceptions bill of certified said counsel any never referred to matter that could be construed as an allusion defendant’s to testify, failure there was no reversible the error, and matter at the best was a mere inadvertence. —Same—Argument 15. of Counsel. counsel, Where the of argument light State’s in the the of of explanation of court, legitimate, the trial appellant’s simply a argument retort the counsel, there was no error. Jury. 16. —Same—Misconduct appeal upon Where an a from conviction of murder the record showed that the irregularities to appellant jurors with reference to the conduct were harmless jeopardize rights and did not way or increase his punishment, there was no error. Degree—Sufficiency 17. —Same—Murder First of the Evidence. upon for sufficiently Where trial murder the evidence showed guilty participants defendant was one in the assassination of the deceased, degree assessing imprisonment of murder in the first life verdict is sustained. from Court DeWitt. Tried the District below before the Appeal Hon. James O. Wilson. murder in from a conviction of the first degree; im-

Appeal penalty, penitentiary. for life prisonment states the case. Hudson, A. Lackey

R. B. I. & Creager, and J. L. Lewright George, It is often that a case arises, not such as this appellant. where both the act and the complicity the commission of appellant such circumstantial by purely commission are shown evidence. In this case by it is shown evidence that appellant either or the man positive who fired a shot near him the scene where the accompanied body of the de found, but it ceased was was not discovered subsequently that deceased had seven been killed until six or hours after said shot was heard to fact, fact, if it fired, have been and the be that this shot was the one deceased, only by which killed is shown circumstantial evidence. There in the record absolutely is. no evidence to show whether or appellant shot; man him fired the therefore, who with under the doc- [Austin* Tesas Criminal innocence, the presumption doubt and it is to trine reasonable fired shot. conclusively that Sandoval presumed that, absolutely suggest we would Upon point since shot, stronger case doubt as to which the two fired had testimony than shown positive against Sandoval did the shooting. of this

What is there this record show the complicity but circumstances. Absolutely Sandoval? shooting nothing as to Ordinarily but one of these enter into question elements whether or evi- case is circumstantial particular dependent be, shot, Ordinarily dence. in a will Was the only question eyewitnesses, other act as to which the cause of the death there were testimony Or, deceased? the death shown positive have been caused to- persons one of several who were at time gether, brought actually accused individual who acting about the death?

In the case at bar both depend both of these questions, evidence, and for solution absolutely entirely in order to remove this case from the realms of circumstantial both, must evi- one, be settled questions positive these as make dence, or so and so strong cogent circumstantial evidence same amount to testimony. positive cases,

In the Guerrero and the defendant in each case Trejo alone, near acted at or was shown crime, the scene of attitude or compromising position, act, was so few and no ques- seen within a minutes after very com- with others in the tion the defendant complicity of in of these mission of the crime enters into consideration either moment of the commission of cases. In each these cases at the crime, and the is at the scene of the crime, found later, at six or seven hours is discovered the time—not delicti corpus reversed in of these cases this court as in the at bar. Yet both case In the evidence. failure to charge upon for the other phases illustrations of Burrell and we have Early cases case, presence of latter cases the of this and in each these time very at the is and positive accused shown direct only in either crime, and question of the commission killing, defendant in the case is complicity as to the testimony; shown positive been guilt of their codefendant having them, in and both of yet particularly in these in cases—though far are the complicity showing Early the circumstances cases reversed both court in this case—this they than are stronger law cir- upon to charge failure of the lower cumstantial evidence. court, and this insist if earnestly believe,

We and firmly carefully tending consider the evidence to each will it, member of Cayetano his which Pena and show reference shot 1909.] Cabrera V. State. deceased, will testify, they

wife shot which killed the noth- circumstances, and hold that these circumstances are (for they with the are ing circumstances) sufficiently strong dispense where necessity requested for a on circumstantial evidence in the court below. referred,

In each of the four we have just cases to which accused, circumstances in evidence to show the tending guilt are far in the case they and than are stronger satisfactory more bar, at and this none of had the double phase these cases case in presents. support In all of cited the State the cases contention, its in its there opinion, this court referred to infinitely stronger not one were not wherein the circumstances than are in now before this court. case

However, in this find that the circumstances court should evidence were this amount strong proof enough testified, shot with and his wife reference to Pena which the witness was the desire in one which killed here (and again deceased not, the most earnest can manner to insist positively broad and justice, so remains find), equally equally there important question complicity firing as to this appellant’s shot, of this makes a still weaker point State l of circumstantia evidence.

What are the circumstances to show tending First, foremost, complicity? the time appellant’s presence fired, circumstances, the shot was this some such following his been seen twice before that same having night company with Sandoval; been seen from the direction coming his having in which the with some other company party (to shot was heard rifle, and his arrested the witness unknown) carrying City of Mexico. Are of such a conclusive charac strong these circumstances ter, to show strongly participancy and do so they tend to a on circumstantial act, right as to him of deprive held, especially ever be so can evidence? We do not believe weaken these in evidence tending facts view of the undisputed motive shown absolutely circumstances, as the fact main crime, that the State’s on the commit the part of occasions with all of the witnesses, themselves, testify in approaching they testify seeing appellant, reference to to which Gonzales, his the witness window, it, in upon meeting leaving normal, on all occasions he every way behavior was in natural no effort with manner, ordinary gait, in an at an walking upright de at moonlight; concealment and in the broad a pistol was shot testimony, ceased, undisputed as shown Rio Grande remained rifle, not with a the fact that finally he and when homicide, for a after the City number of months Vol. Grim.—10. 56 Texas Criminal

left, his where goodbye, telling openly bade friends them he was say, circumstances, can weakened as are going—we these recited, the facts we have or stood unweakened such even facts, be considered the to the fact equivalent positive of of his the crime? 'guilty commission participancy show strongest tending these circumstances the com is, course, his at the time the shot presence plicity of a fired, but at the time the commission presence mere held, imply any criminality. crime has been of itself not to repeatedly crime, of the commission of a place Bare time and presence it, is not to part is not shown that took held party where an unbroken line of constitute one a not alone deci principal, Roscoe in his “Criminal sions in this but such writers as Evidence,” Criminal Law” and Wharton Wharton in his “American this “Law A and able discussion of in his Homicide.” clear is used: language is found in the Burrell where point of which the evidence tends convict “To constitute the crime If him, in the act. part on his participation there must be codefendant, and being present of the of this is intention cognizant of a common de out carrying and it was but consenting, deed, and who committed the with him guilty is sign, equally stated in the correctly subject general principle him in the crime he order court, implicate to commit of his companion been aware of the intention must have a man be ‘Although His is not sufficient presence it. bare committed, if he no in it and part take felony while a present it, be a he will not who commit not act concert with those do he did not endeavor merely because in the second degree principal 213; Cr. Ev., felon.’ Roscoe prevent felony apprehend 157. Homicide, Whart. L. Whether he 6364; L., Whart. Am. Cr. it, companion, participatеd intention of was aware him in criminality to implicate was the fact order proved him, probandum, was the That, act? as to factum rest, to that the evidence and as of which his must conviction proof he was proof There was wholly circumstantial. any committed or that he companion aware of the intention of his part. intention on manifesting overt act at the time a criminal him; it was His to inculpate was not of itself sufficient presence only as con proof, force per guilt, se evidence of or of It his guilt. circumstances, prove sidered conducing with other itself, did not imply for, the main fact to be proved; his con any criminality. companionship, But his presence act, were cir duct at and before and after commission participancy cumstances of his from which main fact was to be inferred. criminal companion intention and of his design was wholly the evidence is plain guilt, therefore that as to his circumstantial.” Cabrera t. The State.

1909.] Honor, was written case, In and which Early Brooks, far circumstantial evidence made ease of stronger for the failure of the bar, yet in the one at same was reversed than In evidence. that case below to circumstantial charge court that accused was evidence Early it was shown (the ease) committed; a the time same was at the scene the homicide at toward defendant, his feeling shown on the motive was part “malice, bitterness one of deceased been shown to be having scene of very at hatred;” hat-band accused was found as the one with with a knife such he was armed struggle; immediately following killed; is shown which the deceased was flight were, and in as homicide; as these circumstances yet, strong the defendant main as placed close juxtaposition than infinitely convincing closer and more (unquestionably holds the failure at the Court of Criminal bar) Appeals reversible error. court below evidence upon circumstantial case, bar, presence In we have the Early the case at shown the homicide it was not (though of the accused at the scene of while the homicide occurred by circumstantial evidence that except of appellant he was no malice deceased there), against part case, any nor on his for the part is shown this motive whatever No as the (such finding commission of the crime. evidence or assisted in the criminal act. participated hat-band) to charge The error on the of the court below part failing evidence this was emphasized ten, number to the effect to give appellant’s special charge refusal of a at of the commission party place thе bare presence commission, not, itself, sufficient the time of its of a at crime further find jury him a must principal, constitute therein; but as the failure of the assisted or participated has been discussed at some length this give below the motion for a new trial content assignment under another it here. reference to simple ourselves with we desire to ask that the members argument,

In concluding filed argument the typewritten and consider this court read again submitted on appeal, case was first term when this Tyler stress laying special that by the fact the court impress upon we do not argument, discussed we have questions raised other points abandoning to be understood means desire with reference those particularly rehearing, in the motion for used in language intemperate and the of the jury the misconduct reference and the argument prosecution, for of counsel testify. the defendant failure of one of them to the Bailey, Davidson & McCord, Attorney-General; F. J. Assistant State. Attorney, Kleiber, ‍​​​​​​‌‌‌‌​​​‌‌​‌​​‌​​‌‌​​​​​​​​​‌‌​‌​​‌‌​​​​‌‌​‍District I. Jno. F. W. Seabury Cited cases in the opinion. Beports. [Ausiin, 56 Texas Criminal Appellant was

BROOKS, convicted murder m first Judge. and his degree punishment assessed at life imprisonment penitentiary. 1906,

Between and at on November twelve one o’clock night Welch, in Rio County, Grande in Starr district City, Judge Stanley his district, was assassinated in room. The house judge which he consisted two one slept Judge occupied rooms. Welch and on the district other. The homicide occurred attorney the night city holding an was at said preceding election. Welch Judge court at the time. and Sandoval Appellant approached Jose and remained Judge window Welch’s room where was sleeping there close side side for a short standing together period One of the two fired a shot into house the win time. through dow was found. He from that body where Welch’s was shot Judge only The evidence shows shot was fired point back. one through night. in that evidence shows neighborhood from wound that killed Welch was fired the window indi Judge four five feet of the body cated. Welch’s within Judge inside of room in the direction from which the window shot body. Cayetano hit Pena and his Only fired. one bullet Pena, de Jesusa Gonzales are the two witnesses who testified wife, saw and his codefendant the shot as above they appellant fire at testify they furthermore were their home They sitting detailed. room Judge early 120 feet from Welch’s and away some and and his their house appellant passed codefendant night thereafter, while were sitting, them. Sometime .still recognized on the bed out of the door looking in the door and other one window, they Welch’s saw' and Judge appellant in the direction They and fire the fatal shot. then saw approach his co-companiоn hurriedly from the window. swore away They positively run them and If his codefendant. appellant be believed as disclosed this record the motive is to witnesses his and and codefendant political killing Welch, enemies of Judge assassins since political the hired and codefendant had nothing suggest No knew that against Judge animus one judge. personal next when the district early morning, was killed until Welch found he had been shot as sug the room and attorney entered and after parties gathered in, various given, Alarm was gested. arrested in was sometime subsequently search appellant continued proper requisition back this State brought Mexico Old him murder this homicide. jury gave tried for Pena and his wife testified with life degree imprisonment. first and his codefendant their time passed that appellant inside east door of house, sitting just Welch was Judge the room. burning Appellant room there was light to the north of the house going Ms which passed codefendant The State. 1909-2 lived,

witnesses then turned right Sometime disappeared. these Welch’s parties passed, Judge light after went out and his time, door was closed. About an hour after they passed the first before, the same two from parties, coming the same direction as up walked to the east window of the south room of Welch’s house fired a' shot. did not They know fired the shot. There are other circumstances in the record that we do deem necessary at this time to rehearse.

Appellant’s first of his for a new ground motion trial complains the court erred in on circumstantial failing charge to evidence. To support contention he cites us to the authorities: following Early State, v. 50 344, 82; Texas Crim. 97 S. W. Rep., Rep., State, Guerrero v. 46 445, 1001; Texas Crim. 80 S. W. Rep., Rep., State, 45 Trejo 127, v. Texas Crim. 546; 74 S. W. Poston Rep., Rep., State, 35 S. W. 656; State, v. Leftwich v. 34 Rep., Crim. Texas 3 489, 31 385; S. W. Rep., State, Polanka 3 Rep., v. Texas Crim. 634, 28 W. 541; S. 20 Rep., Rep., State, v. S. W. Montgomery Rep., 926; State, Deaton v. 13 1009; S. W. State, v. 28 Rep., Puryear 73, Texas Crim. 11 929; S. W. 43 App., State, Beason v. Rep., , 442, Texas Crim. 67 Rep. S. W. 96. The Rep., Puryear State, v. and other supra, authorities noted do not sustain contention. There is a line of long authorities in this State, that where holding the defendant is in such juxtaposition committed, the crime as the facts in show, this case that a charge circumstantial evidence is not required. The latest case that our to, attention has been called sustaining modification, this State, the case of Dobbs v. 51 Texas Crim. 629. In Rep., as to whether discussing question the issue of evidence was ease, in presented we used this t language: “The State’s testimony shows tha a witness a couple yards of hundred away heard a fire at gun where deceased spot found, was subsequently and in a few moments saw his son son (his having gun) from the direction of whеre coming the deceased was subsequently found. The witness walked up in road with company another witness and discovered deceased lying shot, the ground and these facts place appellant such juxta of the crime, of position themselves from the State’s so standpoint, preclude as to the issue of circumstantial evidence.” So we have in this case the parties as thoroughly identified parties fired the who shot that killed the deceased. There was no one else in the room or that slept the room. So we hold that the court did not err failing charge on the issue of circumstantial In evidence. this passing upon case on the question habeas as in 53 corpus reported Texas Crim. 110 W. Rep., S. Rep., 898, we there stated that “The testimony for the State is positive unequivocal relator, company another, killed the deceased him by shooting through a window at night,”

150 56 Criminal Texas placed appellant the facts evidently statement meant issue exclude other to the crime such juxtaposition brief, in addition The State in its' testimony. than that case, bearing to the Dobbs also pertinently cites as supra, 50 Texas Crim. State, authorities: Keith v. question following 264; Hollan v. 63; Kidwell State, Rep., v. 35 Crim. Rep., Texas Crim. State, 45 43 Texas State, 172; Texas Crim. Reason v. Rep., v. 442; 495; Adams State, Polk v. 35 Crim. Rep., Rep., Texas Crim. State, 470; State, Texas Crim. Baldwin v. Texas Rep., State, 589; 533; Grows v. Bennett State, Crim. Rep., Rep., Texas 216; App., 32 Texas Crim. 8 Texas Crim. Hardin v. Rep., 653.

The fourth following charge: of error assignment complains “Do the facts and in this case show such general circumstances of human life as includes the formed disregard necessarily design so, life of the slain. If against killing, person murder, amounted to in- will be malice.” upon express Appellant erroneous, sists that said instructed the jury because a phase of the law and as an not raised the evi- issue dence further reason said for the portion believe, of the court’s jury was calculated to lead the believe, did lead the jury to that in the this court was a defendant and reckless This is an dangerous person. simply illustration used the court the to understand what get jury to Furthermore, murder in the is. first the circumstances sur- degree minds, this case to our do not show that the rounding to facts. There is no error in the altogether pertinent charge. insists in refusing the court erred

Appellant following charge: you “That there is evidence before or to showing tending show or knew Jose Sandoval that the defendant ever saw to and prior 5, 1906; therefore, m. of November at the time of eleven o’clock p. act, acts, or instructed that conduct conversation of you any are to said time of eleven m. or with said Sandoval o’clock p. prior 1906, be 5, by you November can not considered this case as in' to criminate the defendant trial herein.” And any way tending that complains further court erred in this connection “That following charge: testimony to give in failing Rafael Moreno Martinez and was admitted Clark, Rufino Francisco of the State’s counsel that the mate- the statement you upon before shown, but inasmuch as this subsequently thereof would be riality done, you you now instructs will been the court has not of either or all of the evidence said wit- any for purpose consider Sandoval, statements, Jose or his whereabouts of nesses as to the made to him conduct, by Gregorio as the statements or or to' acts sent to him or any message or to re- or other Duffy any person, were or they said sent received night (if him on ceived Í909.] State. said by you any evidence must not be considered for

him); purpose whatever; and it is your duty wholly to jurors disregard same, minds, you exclude it from this case as your try though had never heard it.” The record shows the court permitted Rafael Moreno to overtaken on testify for the State that he was 5, night Sandoval, riding November while by Jose m., the road from Roma to Rio Grande City, p. or about nine and that he rode with said Sandoval direction about a league City; Sandoval, of Rio that he Grande conversed with said Sandoval then left toward the witness and rode on ahead It City. Grande is shown Rufino Clark Bio that he saw Sandoval Boma, five miles below at a ranch in Starr and on the road County, Roma Rio City. entirely from to Grande This leading testimony evidence State shows that germane pertinent. acting murder, the commission of this together were parties show that they evidence to were any going prob or were present them, both, one or each germane perti ably present, follows, therefore, did not nent, refusing court err Where two or quoted charges. together above more act parties prior or declarations the consummation of a crime that acts and animus or purpose probable illustrate co-operation will crime, in the commission are admissible. The parties was no testimony showing parties sheer homicide, night to the prior does not show acquainted If met together. they did not act for the first time on homicide, the testimony that he was night going would be clearly met admissible. would be where argued jury indicate circumstance only did not. Kleiber, district I. permitted attorney, John

The trial that while he was in Mexico, State city for the testify incarcerated general jail city. defendant said saw shown bill of exception objected Appellant irrelevant, same was immaterial and that preju- 4 the ground on No. defendant; this the ground further of rights dicial to nor for the to that proper State prove competent it was not that any for this or other offense. jail in It had been defendant this testimony. this It a permit to is cir- the court proper was at rate it could not prejudice or flight, to show cumstance he was in jail charged to this prove rights appellant of crime. of was the refusal court to of complained give error 12th The which is as follows: appellant, 3 asked No. charge special You are instructed of request of the jury: “Gentlemen a follows, fact) to wit: That the fact it is (if the defendant Mexico, of or Republic from the extradited the defendant undertake to defeat said extradition or did not did fact 152 56 Texas Criminal [Austin,' otherwise, or can not be considered in legal process you this in any way Every to incriminate this defendant. citizen tending a has right appear before the officials and defend himself proper in an extradition and the does so is proceeding, fact and can not be as a or show considered circumstance you, or ing innocence, to show his or as to the crime with tending guilt which he stands is contended that the court was It charged.” error show this, because evidence was introduced to refusing while the extradition appellant fought of Mexico city from the asylum United from the States and resisted returned country. He that exception asserts in brief the statement was reserved No. 3 found to this his bill exceptions testimony 31 32 bill pages An of that transcript. inspection of the does not bill indi verify nothing this There is contention. re cating appellant fought exception extradition. served to went Kleiber that he attorney statement of district city of with extradition of Mexico business connected testi defendant and far phase bill ends as this- so mony far as this conceded, concerned. be so may concerned, fought appellant introduced extradition, the defendant but this advantage in order to take must testimony, and object to the introduction of this overruled reserved should have objection properly bill of motion made done, nor was a was not exceptions, but exclude We find bill of testimony subsequently. exception meet his use a reserved, special charge seeks to failure This done. can except to the introduction it. A bill exception can not be used to serve the office v. Pippin or of evidence. regard rejection to the admission State, 16 State, 9 Texas Crim. 269; Texas Crim. Thomas v. App., 103; Gates, Nall v. 535; 40 State, Rep., v. Texas Crim. App., Capps 126; Bohanan Texas, 315; Texas Crim. State, App., Lanham v. v. instruc Hans, requested hold that Texas, 445. therefore We. tes exception regard tion bill can not take place The authorities timony rejected. illegally introduced cited not in inasmuch Missouri, point are notably the from appellant, been There having the court. as the is not before question properly testimony, introduction no bill of exception reserved Therefore, following charge. can not be raised aby special 76 W. State, S. Johnson authorities upon by appellant, relied W. 350, 71 S. Rep., 925; Crim State, 44 Texas Rep., Rogers v. 65 W. S. Rep., 18; Crim. 43 Texas Rep., Weaver v. Rep., 534, are not in point. failure of complains 15th of error assignment mere presence court to “That give charge: following was killing, present, defendant of the at the time and place charged, would of the guilty him offense justify you in finding State. v. The 1909.1 evidence, by competent minds your has satisfied the State

unless knowing doubt, (the defendant) that he reasonable beyond him act, aided committing intent of the party unlawful such offense. him words or acts to commit encouraged acts by competent such acts would devolve the State to prove And it defend- doubt, evidence, you a reasonable before can convict beyond in this case on principals ant such evidence.” under was full. very every required It covered possible phase language law and succinct of this State. It told the clear jury the parties that must a reasonable doubt that beyond believe offense, of the at of the commission acting together were the time that Furthermore, testimony and it was not there was necessary. were not parties acting together. insists that charged jury the court should have

Appellant influence must not allow the that he is a Mexican to in this them in verdict. There arriving nothing suggested record to such a Or á to the effect that require charge. they must not consider bare fact that the deceased was a dis- trict judge.

The 17th and 18th error that the court assignments complain erred in refusing permit to read a decision of this court, Gonzales, in the case of Francisco Jose which shows that Pena had authority carry arms, and, commission men to fur ther, to show that had deputized appellant carry arms on after day the homicide. seems that the State that proved on the 6th after the morning homicide and after the disc overy Welch’s dead body number large men, march in file and headed a band ing of music marched stopped deceased, in front of the house of the and that said men were by a number of armed men accompanied rifles or Win carrying chesters insists pistols. Appellant this testimony was cal impress jury armed, culated parties unlawfully and that this defendant was one of parties. It was pertinent to show for the State appellant, company others, day armed the next thе homicide. following The court admitted t effect appellan legally carrying arms in to rebut order created presumption the State’s think a do not decision this court holding one Pena authorized to issue a commission to bear arms was admissible under view of the case. Nor do we think the testimony of suffi the court to require cient moment tell the had jury day to bear arms on the after legal right the homicide. 22d and 23d of error assignments complain the court I. Kleiber to testify erred in John for the State, permitting effect, the next after day the commission during substance homicide, he through aperture where the slat sighted east window the shutter of the room in broken out of Bepobts. 56 154 Texas Ceimiwal found, was body which the sleeping deceased was which the 1906, and wound 6, body towards the of November morning on the deceased, said room imme- of the east window of that behind the immediately Welch and body behind of diately The of This was admissible. body. testimony in the back said hole The same effect was also admissible. of Dawson to the testimony removed would body only go been and replaced had to of the testimony. the weight 24th error the court erred in complains of assignment testify State that bullet witness Dawson to for the

permitting the the -right killed the deceased entered back near shoulder which in front of blade, body, and that the of exit was wound point left breast. The bill shows witness was an expert gun wounds, and no error his testimony. there was in admitting shot of as to the window testimony the witnesses the condition of and all other this homicide were surrounding blind circumstances admissible. 14 exception

Bill of No. the court erred in complains per- the district and intimidate the witness attorney frighten mitting Moreno. The contradicts this contention. Bafael qualification the court erred in The 31st error be complains admitting Cayetano Pena, witness, a State’s fore jury the defendant’s over the objection appellant, challenge herein, Cayetano Pena as a witness of said competency introduced defendant shown uncontroverted evidence was offered the State that had the time said witness States Court at United District Browns twice been convicted wit: the crime of illicit retail ville, Texas, felonies, liquor receiving concealing smuggled and the crime of prop dealing, for such Federal Statutes cases made both in violation of the erty, evidence. Under the United States and introduced provided, confinement in the punished legally Statutes defendant might duration, one year a term than for penitentiary greater terms of witness under the section of said incompetency urging the In Criminal Procedure Texas. 3, 768, Code of article 301; States, S., 157 U. Barron v. v. United Reagan the case of 495; Ex v. U. 114 S., Wilson Stаtes, S., parte 156 U. United 348, States, S., U. it was held 417; United U. Mackin v. S., is not a felony. convicted the offense which Texas Crim. App., passing In of Pitner v. the case defense, in order we held to make upon a similar question, purpose disqualifying available State’s the judgment law have Kansas that witness, forgery should proved hold that witness was not We therefore felony. disqualified since, to the Federal decisions the offense of testify according felony not a could not come he was convicted within The State. 1909.] him from by appellant disqualify invoked of the statute terms testifying. in permitting erred

The 33d error complains son-in-law, he told his for the State testify Pena to Cayetano 1907, what he ‍​​​​​​‌‌‌‌​​​‌‌​‌​​‌​​‌‌​​​​​​​​​‌‌​‌​​‌‌​​​​‌‌​‍claims Trevinio, (Pena) in April) Pancho 5, 1906, pertaining November night seen and heard on the 21. No. by as hill of exceptions murder Welch shown it This to by appellant ground objected the. Furthermore, said Pena irrelevant, hearsay. immaterial at time he was had not other witnesses impeached by any been he show that allowed But the record and hill does testify. thus to statements to the by contradictory one impeached proving Therefore, it was to permissible sworn to in the trial of this case. what he told his son-in-law. prove

The 34th and While the assignments 35th show the following: Gonzales, State, Maria a witness for the was testifying, witness Jose defendant, to the wit cross-examination reply question, is, him,” at stated: “There he ask to the defendant pointing ness Mr. Seabury, time he made remark. From this said circumstance in his jury, counsel to the undertook argument witness an idea that said Gonzales was impress upon jury man, him, honest and truthful shown the remarks made and his at the defendant. said said pointing The defendant of said and were in fact Seabury conduct constituted argument harmful the failure this an indirect but allusion to exceedingly testify herein his own behalf. The bill of defendant excep tions reference the matters it as follows: While the presents “Q. he was witness was on cross-examination asked: What were A. you? first In what direction was the words Cabrera spoke Q. I did A. him you reply? way shot? What told it was that Q. said, Yes, Is all That way?’ A. (indicating). you just Q. sir, you towards the courthouse. Did mention his A. name? Q. No, sir. Are are you sure those the words used? exactly Q. Yes, A. sir. Then what did to that? A. I you reply told Q. him, ‘No, it was towards that Is that all said? A. way.’ you Q. I That told him. You are all said? you what sure Q. Yes, A. said, sir. Then what did he ? A. reply He ‘We were shot, I coffee when heard the and I do know drinking in what Q. had just you direction was.’ He told what direction he thought Q. Yes, was, not? A. Then he turned had he sir. around and did you he had been coffee not know in what drinking told sir; him, Yes, A. can ask he is you direction it was? present Q. any Did other words at all defendant). (indicating pass Q. A. sir. No, you Are sure the time? words you between at the exact words that here under oath are passed? you given Mr. Seabury above facts discussion Yes, A. sir.” During which had in the trial of the case been referred this incident 56 Texas Criminal [Austin,. counsel; out an appellant’s whereupon examination brought testified, had not objection immediately made that appellant and the court matter endorsed bill of passing upon full stated exceptions statement of the facts and complete referred Seabury attached to the bill that Mr. never explanation any- matter that could be intimating jury construed In of the about testified. thing light not having de- of the it was an allusion to explanation can not hold fendant’s we have copied failure to The bill is testify. quite long as full same as the will There ap- length justify. pears to have been no made the the time the witness protest replies, statement on The witness part defense counsel. “Yes, sir, is, you him,” there he can ask counsel appellant’s it, attorney inadvertently repeated never and the protested against this violates stat- say what the witness stated. We can not in this ute invoked case.

There is a bill of in this record long complaining exceptions of Hon. A. B. Davidson. In the light expla the argument at least was nation of the court the argument legitimate, or made by pro a retort counsel argument appellant’s them. by voiced in this:

The 39th error of the misconduct of the complains jury case, but had heard in this part argument After jury finished, and before received before said argument jury H. C. herein, Charles Lenz approached of the court one and sworn Huebotter, duly was then and there a empaneled who near of said Lenz in in this at or the restaurant juror Cuero, Texas, said (Lenz) and stated to Huebotter that he city of Huebotter’s that said telephone message had received effect had run with his away (Huebotter’s) horse which his buggy, were and had torn and that riding, up buggy, children wire,, his were badly up by cut barbed but children horse him the bill hurt, presenting and for not to Attached to uneasy. found the district judge matter is the affidavit but juror, try- and the juror a matter of fact that said affidavit untrue as was in influenced what occurred way by this case ing the verdict true, and that Huebotter had stated facts not juror room in the jury what way was in no affected occurred the jury these Lenz. present of Mr. To presence nor what occurred very careful after a unnecessary, in detail would be since matters complained of same we hold that reading irregularities rights way and did not in jeopardize harmless to defendant misconduct Other pains penalties. or increase punishment, reviewed been has also jury complained appellant reason for reversal of the judgment us and we find no ground of such misconduct. assign all detail

-We hаve discussed with much candor and 15? iZ909.] v. The State. ments of error raised by in this very voluminous record in all covering nearly one thousand pages, feel constrained to say that a verdict justice consonance with law and the procedure of this State has been secured. The record shows clearly appellant, conjunction codefendant, with his as a acting cowardly tool of a lot of assassins political killed the district judge of his district. That evidence is clear cogent might be can said, not be sufficiently to show to convincing any fair mind one of appellant was the guilty participants assassination, we take it there can be about. no cavil

So and- so record, believing finding the is in all judgment things affirmed. Judge.

RAMSEY, I am not prepared agree to judgment of affirmance. It seems me that the court should charged the law of circumstantial I am Again, evidence. inclined to think No. 10 special charge should requested appellant’s counsel have been Nor given. am I sure there are not other errors in the record. I may my write views later.

ON REHEARING.

May. 1909. Judge. BROOKS, This casewas affirmed Dallas the recent Term, and now before comes us on motion for rehearing. first ground motion is this court erred finding, fact,

as a matter of Cayetano Pena and his wife testified they “saw and codefendant fire the shot” to have alleged killed If the deceased. appellant’s counsel had construed the opinion all whole, as a opinions construed, must would have they will incorrect, seen that this criticism both since it gratuitously that statement following be shown reading opinion city Welch was at made, holding is therein to wit: said “Judge and Jose Sandoval approached court Appellant time. he was remained sleeping room where window of Judge Welch’s^ by side for short period side together there close standing into through the house fired a shot One of the two time. shot from was found. He was body Welch’s window where in said will along opinion Further the back.” through point body. one bullet hit “Only statement: following be found the Pena, are wife, Gonzales de and his Jesusa Pena Cayetano saw codefend- they appellant testified that two witnesses who Further said opinion along as above detailed.” ant fire the shot and his appellant co-companion saw “They appears following: The latter when the fatal shot.” statement and fire approach that ap- two show light statements previous construed 56 Texas Criminal never attempted criticism is since this pellant’s hypercritical, say, understand, nor does it now the record to be that appellant deceased, does himself fired the shot killed but the evidence above mouth the two conclusively establish the fact out of the Sandoval named witnesses that direct appellant co-operation through present when shot was fired killed the deceased the window either walked they about twelve o’clock at night, they away or ran is immaterial whether after said shot. together un- ran or the house at an They They walked left. were at away. seemly seeing hour. had the house They approached previously while after deceased in his door short sitting disappeared, out, light they approached was blown out or turned then deceased’s window, stated, de- the back of the and fired a shot into ceased, testimony in record. The witnesses to the this according wit- say, of this court say, did not nor does the shot, nor of the two defendants fired the nesses stated which one law of which one fired the shot. principals it matter under the does of the State’s witnesses testified further insists that both Appellant whatever in the of either any possession did not see they weapon Sandoval, either the occasions testified to appellant moreover, they witnesses testified that did not witnesses; said said shot at the time claim to have any they flash or rifle pistol see or Sandoval. The heard the shot fired either Pena, found on of the statement Cayetano page of the witness to the immediate facts of the is as facts, shooting, in reference that he saw and Sandoval to- testifying follows: After testified before the he then as follows: killing, while gether a short my men come I saw these two house “The second time by reference to way (indicating map). this going were they night, house, and is the house of the this my judge This the corner men I two there the second time saw these when (indicating); window way (indicating) went they that night, to the window and got the shot was they After room. judge’s by reference to I did map). way (indicating fired, they went on either of these two men when or gun see pistol When the shot was fired night. time house either my passed window; Í in the door. went to the I sitting I did not remain of mine. I had in that same house After window went my My stood at back behind me. my wife the window opened When I on it. went a blind window had window I it, I to the window got opened opened When shut. blinds fired I When the shot was at the door. shutters. one corner the yard, to the of the priest’s wall. go I them saw time At the two men these left the corner When of the window. I the was at Welch, went to the window of Judge I lived in which house shot, side. they side Before fired the walk a natural went they little, any time, very hardly window Welch’s Judge remained they ¿909.} The State. the shot.” they after fired they stood there a few moments just I into which saw

Furthermore, testified: “The window witness the river. this towards part shot fired the first window on the in an steadily they After the went they away; shot fired went saw, ordinary pace, they ordinary that is what I went in an that I had did not Welch been pace. night know that that Judge Now, killed.” by saying “they to whether the witness means homicide, away” went ran steadily from scene of the walked, above, utterly They as stated becomes immaterial. left building together; together. They went went at innocence, time when no of inference could be attached to possible either, at the dead hour of the night, walking together up window, house, one the two fired a shot into the deceased window; a few feet from mark lying of the from weapon the fatal ball was fired was on the blind impressed window line, testify, direct as the witnesses back hole in bullet, deceased and that his back was made his heart. having through bullet passed probably second The motion the court erred in ground complains as a of fact that said conclusion Pena and his finding Cayetano run away wife saw and Sandoval appellant hurriedly from the The Judge window of Welch’s house.' last statement above made this criticism of this court. opinion answers -is third motion ground court erred in its “if the testimony of fact conclusion witnesses is to be record, this as disclosed the motive believed for the killing and his codefendant were the political, hired assassins enemies of Welch.” political Judge Appellant insists that of the court is absolutely this conclusion unsupported by and con- facts trary urgently requests record this court to set out the witnesses as this such of the court considers to be was the sufficient to hired assassin prove of political further enemies Welch. submits Appellant this court has a most lame and reason for given impotent fact, finding viz., record to nothing because there suggest that appellant any personal animosity and his codefendant had against the judge. that upon further states reflection this Appellant court must see This position. of that record weakness contains something opinion pages. over one thousand this case had to be five hundred of statement of pages facts, from over gleaned and in to the fact that appellant sheer deference the court erred .insists the motive for the killing its conclusion was political, of the evidence that we will state the substance think now suggests do so in To detail killing.. the motive for would make the and tedious. The unnecessarily prolix evidence shows that political organization county appellant belonged of the district with that judge homicide at variance whom he as- 56 Texas Criminal sassinated. The party with whom Welch and the Judge district at- torney affiliated and or faction were each appellant’s party holding a political on the of the homicide. Welch meeting night had been to apрealed by one of the adverse to appoint factions part of said adverse deputy faction sheriffs to the next keep peace day, which was day. election This he refused to do. positively The record shows armed by that after his death some appellant, authority, judge’s marched in front of office stopped where he killed, many was of his companions, with company about believed, seventy whom, if were armed. this record to be fact, In one bill in this record action exceptions complains of the court We did this last fact. permitting the State to prove law, mean state, to say, nor do we now as a matter reason political, can be reached no other conclusion fact, candid mind in as other than the stated this record reading original political was the hired assassin opinion, appellant enemies, since the and the deceased record discloses that appellant sort other, unknown to least had no each or at one to the animosity bickering, or misunderstanding personal other. The record is various circumstances showing with replete the most crowd that animosity existing among appellant intense efforts, them, ran with as he conceived and his against judge on, nor are we attempting, enforce the law. We are not here called insistence, intimating nor are we pass upon justness from a stand- insistence illegality political here of appellant’s do, and care less. point. naught With matters we those animosity, him Therefore, personal conceding had no for him in insanity interposed this rational—and no plea with replete suggestions full and .case—and the record dead hour of night, animosity, killing occurring political otherwise designated not be than when can asleep, the victim was to our minds con- showing Then the evidence an assassination. assassination, and political committed clusively from a careful inspection of manifest rife and animosities being reason other than as the motive record, can not ascribe to this apparent here state stated, reiterate and we and assassination this homicide for motive basis and that "the make this detailed facts we above In addition political. for rational basis clear demonstrating addition thereto the motive original opinion, conclusion stated in seen at were" companion killing Appellant was political. with faction political or meeting headquarters af- deceased which the faction affiliated and opposed of his members commissioned The deceased killing. filiated before the faction of the opposing those authorize refused to side and had day. Appellant day—election following armed the go act as police after Gonzales just were seen and talked and his companion lisos.] State. direction fired in the the shot was claimed Appellant

the killing. fired the shot said while Gonzales of his faction of headquarters a gun had then That appellant room. of deceased’s in direction the the, Gonzales be seen dur- which could concealed, only barrel of and confederate conversation; they separated, appellant the ing was- subsequently he, appellant, where towards headquarters going seen. the court erred motion of the ground complains

The fourth search appellant in that after continued its conclusion shows, The record in Old Mexico. subsequently sometime arrested homi insists, where county he remained in the not did that he homicide, and cide occurred for sometime after District of the for after adjournment .leave there until Mexico is furthermore 1907. term, of Starr for its County spring Court Cayetano viz., true that witnesses against appellant, principal City, in Rio Grande Pena, Gonzales, his wife and Jose Maria lived is the show, and this homicide; of the but the record does place make, statement we only attempting were to extradited after in captured continued search Mexico all he could Texas, doing back to he arrest and brought resisting only This is the thought back Texas. escape brought we to suggest only meant and the conclusion that could legitimate drawn from statement have been the opinion. fifth the motion

The ground complains court erred the trial committed no error in finding judge failing on and in circumstantial evidence refusing circum stantial and feels that when this court begins to discuss state are just why they those cases attempts not point here, will reach contention appellant’s the conclu sion that it erred in this original question its of law. finding upon In first stated in the rendered place, in this case opinion 110 466, Crim. 898, habeas Texas S. W. corpus, Rep., Rep., of the the court held that State is unanimously posi tive and relator with another killed unequivocal company a deceased him window at We have re shooting through night. cites, examined all that appellant together authorities with a great many authorities, other and have no occasion now to change our case This evidence. was tried case the court below under the guidance the habeas opinion which stated that evidence was corpus positive, and while reverse, we would hesitate to we we thought error, were still a thorough after and careful review of all authorities, we stated, hold, as testimony. In appel lant’s for motion new trial he insists that none of the authorities cited this court In support previous opinion. the case of Polk and Watts cited in the original we opinion, Vol. 56 Crim.—11. Criminal Texas think,

case, as exactly we reference facts of this point case. all dying declaration deceased the salient covers features State’s testimony, quote. from it we After stat society church, to a then ing literary says: went “After the exercises broke Parsons up boys company two and started got home, boys, the balance myself, along followed including them, behind so we they could after took get together the girls home. reason we why did was because we feared something would After we left the church three happen. boys we saw com us, and behind ing were, see who stopped they they passed street, us on other side of They and I they saw who were. Polk, were Austin Biz Watts Mack who eye. had one Hughes, They walked ahead of us some and after had piece, passed us on the on, same side got kept street we and us, bushes, ahead of we saw them turn out of the road into some run, they fifty in a when At this time were stopped. about them, and I them feet from heard sounded a snapping what like shoot, I Mack not it me. pistol. told was Mack jumped run, did, and started and as he all the up boys three com I menced could that Mack at shooting. tell Hughes shooting me, way but could not tell which Austin Biz were shooting, they but think were at the I boys. Parsons shooting looking him at Mack and had been Hughes, talking before he shot me. was the one that shot me. I Mack know this. There Hughes were several shots fired. I don’t remember pistol many how though, but the all the were At time of boys shooting. the looked shooting Austin, as if Mack and Biz shooting were at the Parsons boys, who the as well as me and who girls, were with were with me.” boys How, is the State’s the above practically against appellants Watts, Polk the decision now under consideration. Mack Hughes was tried does what record not show was done with separately. How, a statement, certainly his case. casual the above reading cited, a full last will ‍​​​​​​‌‌‌‌​​​‌‌​‌​​‌​​‌‌​​​​​​​​​‌‌​‌​​‌‌​​​​‌‌​‍reading decision show the deceased all, Polk and him did not swear Watts shot but appellants not. they swears did The evidence further positively shows dark. it was He had seen these two defendants into go woods with Mack Hurt found that Hughes, Judge it was two necessary in trial of these defendants to on circum charge stantial in that connection the using following language: no omitting “There was error circumstantial evi dence. There was evidence parties participating not, if act, and, the main the facts were such close killing; unnecessary.” See also Kid juxtaposition rendered such well 264. v. Tеxas Crim. The facts show that Rep., small, Kleiber, sleeping Welch and the district attorney, house, one-story each rooms The appellants occupying adjoining. walked at the dead hour of and one other night or the shot into up The "State. Cabbeba j 1909. while of the deceased in the back a wound inflicting window shot had shown that then, evidence How sleeping. dis room and have run into the and he should Kleiber up waked rationally away,” could it “steadily walking appellants covered evi a case of circumstantial case would been

insisted that two not, when the evidence of Certainly especially dence? Then between this condition only difference Penas is considered. room before us is that Kleiber did not enter and the record least when immediately, but came within five or six hours or at Pena and waked and found the dead. up morning judge one no wife saw one shoot into parties the room. There room room, Kleiber, awoke, else when he went into instead then and found the dead. Would the fact that he went judge Cer of immediately render the case one of circumstantial evidence? tainly sleep not. Where the evidence shows that a certain party and another said alone in room is seen ing party approach room, dead hour of the fact night, room at the fire into said not found body his dead until does morning next make it a Pena and se case of circumstantial evidence. per Suppose wife, fired after shot into room and after hearing appel steadily lant and his walked said and wife companion away, Pena the house and found deceased on his cot dead. approached lying made Would this have case of circumstantial We evidence? not, and could yet not swear the bullet apprehend they saw deceased, kill swear could as Kleiber did swear room, one else in the and the show physical facts bullet which was fired into the window killed deceased. in the original But stated if these opinion, are circumstances show only that deceased was killed going by appellant, the facts are in such juxtaposition still to each other as not call on for a circumstantial evidence. in his zeal in Appellant on an of this court impossibility sists that he that we suggests a like exactly out decision the one here under point" consideration. has been laid down philosophic principle The many courts the facts are in such where one to the other as in this juxtaposition court does not have on circumstantial evidence, and we with apprehend the utmost confidence the state that no ment court of last resort would hold the facts" in this cаse a evidence. charge upon warrant the motion for is in all believing, rehearing So things overruled.

Overruled. Judge RAMSEY, opinions are (dissenting).—Dissenting usually I am always most useless. vain, part and for the reluctant to dis- the deliberate convictions sent from an opinion representing my in which I heretofore, in the few instances have found associates them, I have done no more than agree unable to myself Eeporís. 56 Texas Ciíimiiíal briefly note that fact with as brief a statement the substance of my own of the opinion possible, the importance ques- tions involved in this for respect that decent the opinion of the entertain, which profession every should con- judge strained tome set out at which length particular reasons upon my own is opinion based. I am sure I if write with earnestness will be understood that is without the opinion disrespect is majority and due to the I entertain. strong opinions In my and as I judgment, law, read and interpret opinion of the law, overturns a majority the ancient land is marks from the settled rule departure court, and our Supreme Court more than a half century, wholly unsupported authority, and in the face of all without wholly the authorities and I correct, as a legal reason basis. If this I so entertain As to dissent. to whether I am will be ought judged right wrong by the reasons given authorities in this opinion. cited are Judicial Stanley Welch,

What the facts? of the 28th Judge Texas, District, County, was assassinated in Rio Starr City, Grande on at the time 5, 1906. election night November The general there was and law day, fixed be held the next in that section had been considerable excitement political lamented body Grande City. in Rio particularly of November between was found on morning judge wound, from a undoubtedly gunshot His resulted death o’clock. when found. for several hours had been dead and he apparently and two back, one in his breast wound in his There was bullet bullet. He was same by the evidently wounds his left arm made one-story brick two-room killed, room when the south occupying, Kleiber, John I. house, occupied room being or north adjoining in the south building office To east attorney. the district and. at distance found body of which room Welch’s of which was occu room building, one 120 feet was a one-story about This Pena, his wife. de Gonzales Jesusa by Cayetano Pena and pied seven feet above the a rise about last named house was situated the two houses was view from elevation of house. the Welch house. around the Welch no fence unobstructed. There practically width, upon the opposite Street, To 60 feet the north Third lay inclosure, occupying Priests’ known as the side of which what is feet wall about seven block, brick a a about half and surrounded vacant lots and were house the Welch To the south of height. head situated at is county then a small The courthouse jacal. was Welch Judge of where Avenue, north Britton 500 feet about Avenue, Britton across diagonally killed. is Church Catholic upon south house, facing and northwest from the Welch the.corner meetings Two political Street. Britton Avenue and Third of the assassination. night City held in Rio Grande or “Red Corral” what' is known One was held at meeting v. The State. 1909.] other and the adherents were

club, gathered the Democratic where club, and Republican or where “Blue Corral” Independent at in what is known The former was held assembled. forces were as “Juan in what is known and the latter old courthouse approximately Rio River runs Grande inclosure.” Hinojosa’s Avenue, south of the court of Britton the foot and west at east body Welch’s Judge which Welch house. The cot and house a distance of, and at in front directly found lying The south his room. window of four to six feet from the east from a brick partition room from the north room was separated Hone over same. transom with a pine which was white door had been Welch knew, Judge suspected, witnesses or even 6th morning on the killed until between and o’clock any show record to of November. There is no evidence Jose Sandoval or motive whatever on the of either appellant part Welch, kill circum may implied as same Judge except was due to his death stances. We think the inference is fair that rea any special show there is political animosity, though nothing either son that his death should have sought been of said parties Sandoval. There is no evidence show that either any Welch, with nor was there personally acquainted Judge evidence to show were acquainted and Sandoval Judge each on which the other or had ever met prior night was killed. and was a citizen of Sandoval lived Mexico and many years had lived in that section Republic. Appellant testimony indicates that he was an adherent of the opposition Welch, was not party Judge though specially prominent it, nor words was there a hint testimony any spoken him or to him Welch. shown Judge simply touching hostility there was an between intense the factions feeling that he belonged to the later the fact Independents Welch was killed. The a conviction was testimony circumstances, rests in the sought, except few incidental wholly husband, evidence of her Jesusa de Pena and Cayetano Gonzales Pena. are between these many They There contradictions witnesses. contradictory contradict their themselves repeatedly, trial, as same was delivered on habeas on this trial corpus Cayetano contradict each other. Pena themselves and contradict was shown to and convicted of more have been than one charged wife, offense Jesusa out of custom Gonzales growing laws such Pena, de is shown to have been a witness of dense ignorance belief. She as to almost testified she incapacity stagger was; old she did not know the did not know how date the birth children; did not know the date of of her eleven her own know windows many did how there were in the marriage; she had lived at the time of the house in which murder front year know did not what testi- time she year; ' 166 56 Tesas Criminal the week was day of fled; month or not know what did in which the the year not know and did testifying, which she was testified that She also Welch. killed Judge shot was fired which was; that she did west north, south, east or did know what she or a write, time the clock tell the not know how read or or in however, was to the effect this trial testimony, watch. Her she and her husband murder of the substance that the night that between described; night in that on were above house chair in the door in a sitting o’clock her husband bed; on the of the that and she was of him side back sitting just room; moonlight it was beautiful in their that light Welch’s her door across to and that could see from night Judge she his in of the door, could inside room front sitting see him door; room; in she his while burning there was light Welch was and her there and while Judge husband were sitting in door, in and Jose Sandoval front passed also sitting appellant was sitting; and within six or of the door where witness seven feet river, and were were from direction they coming well; they Witness knew them both toward the north. going house, walk, and said noth along passed front along these two men Welch’s passed, Judge That after ing. sometime closed; hour, about door an light extinguished time, less, or the first witness saw they more after passed from they the same direction which Jose Sandoval coming before, of her door turned they had come but before front getting office, and, and in a per off towards Welch’s Judge walking upright room; manner, walked the window of Welch’s fectly Judge natural window they stood close a few they together that when got fired, heard a shot and that in a moments and witness short then was fired and Sandoval walked off in time after the shot She did not know house. nor did she the direction priest’s hint which two men by any indicate fired shot, the shot was though she testifies fired the east that, the- room; Welch’s that she did see Judge that either window of a rifle or a or arm of kind pistol any had on either parties that, them; when she saw the two occasions she heard no other flash sound, did she see pistol gun. nor the. She also of the shot she firing that after suspected testified nothing Judge know Welch had been killed and did not until wrong she testified, She as did morning. husband, so told next her would tell' no they one they, agreed circumstances so, before because were afraid to do nor night did to anyone about until anything several say there months Maria testified after. Jose Gonzales that he was living Rio at a between City Grande Welch’s place office and Blue Club; he had been attending two political meetings on on the night going question went home about 167 The State. Cabbeba v.- 4909.2 heard a shot undressed when he had partly o’clock and out and walked dressed got up, direction of the Welch office and man and another his met appellant in the street near house and he had direction where know, from the whom he did not coming be a shot; witness took to heard carried what that appellant had con witness some under his This rifle concealed coat. partly that said in substance versation with in which appellant appellant the, shot, coffee; he was drinking at time he heard the house him; a towards away, witness saw these block parties coming at they could have and have turned off easily seen him could him, another desired, came on toward they street had so was in walking gait, straight at a natural walked to where he up him, natural street, way and a as spoke perfectly passed asking him in was the It was which direction shot. shown a been sent to Mexico on November 5 for Jose Sandoval message had and the Clark him witness saw on this side of the river in Texas Roma; five miles and evening about from on horse .that way and was the time on the to Bio Grande City. back at It mind my a number of by quite was demonstrated circumstances killed Welch the east Judge passed through the shot which in his body back his entering causing window of office inference, think, I a the entire It fair from record death. killing political animosity

the motive due to the believed, activity, as Welch Judge respect political- differences factions, two between the to his contending particularly refusal to bear arms to the grant party of which right appellant- a In this it should was member. connection be stated Cayetano Pena way supported that of his general wife movements Sandoval as to the firing, the shot and their window presence when the shot was fired, of this discussion (whatever and for the purpose be might own a matter it will my fact), be assumed that that appellant to show evidence is sufficient Sandoval were at house, Welch’s and that or one other window If true, window. this be into said fired shot and so them much First, arise. whether conceded, not, or even if questions be two shot, fired was a case of be cir conceded the court given and should evidence cumstantial to that' character of respect testimony? jury an instruction while the evidence shows that one of Second, whether the question murder without showing one of committed parties the two is committed overt act nothing—that did and the other them by any witness—and that his as testified no word spoke is to killing gathered from relation .connection presence connected with the killing, circumstances and other required? evidence is well set case is one depending alone upon where cir- tled this State 168 56 Criminal \_AusUtt, Texas evidence, must cumstantial the court charge upon character whether to do v. requested State, so not. Hunt 7 212-238; Crim. Howard v. App., State, Texas 8 Texas Crim. App., State, 53-59; 275; Ross v. 9 Crim. 10 State, Texas Ward v. App., 293-298; Texas Crim. Barr v. 10 Texas App., State, Crim. App., 507-515; 602-610; v. 10 State, Robertson Texas Crim. App., Wright v. 12 State, 163-169; Texas v. State, Crim. Gonzales App., Texas Crim. 657-664; State, v. Texas Crim. App., Ray App., 51-56; 57; v. Wyers State, State, Crim. Harris v. Texas App., 13 Texas Crim. 309-318; 14 Texas Crim. App., Lee App., 266-270; State, 312-314; Dovelin v. 14 Texas Crim. App., Cooper State, v. 16 State, Texas Texas 341-344; Crim. Black v. 18 App., Crim. 124-130; State, Crim. 73- App., Puryear v. 28 Texas App., 79; 11 S. W. 929. that Rep., is as well settled where the case is not is dependent alone circumstantial evidence court Tooney of evidence. v. required charge character State, 452-463; State, 8 15 Texas Crim. Buntain v. Texas App., Crim. 515-520; State, v. 18 Texas Crim. App., App., Hunnicutt 227-240; 498-523; State, House v. 19 Texas Smith Crim. App., 21 State, v. Texas 277-308. These general principles Crim. App., discussion, so well settled and are need propositions the rule seems to be That this opinion. recognized majority a the decisions by was case circumstantial of this judged heretofore, hereafter undertake to demonstrate. shall in by Hone of the cases the court herein original opinion cited evidence and none of them are in were cases circumstantial by reached point majority except in the conclusion support 442, State, 43 Texas Crim. sus Rep., v. the case of Beason All cited believe, the other cases tains, I my position. testimony, were cases of direct of the court original opinion To testimony circumstantial. establish in not a one of them was the cited, The first case Dobbs the cases. let us review this conclusion in 629, was case which the Rep., Crim. The Texas to the fact of the in terms express testified wife of the appellant The issue in that case was not denied. Indeed, was killing. written in this opinion, Judge We find an self-defense. issue of however, insists the court erred Brooks, statement: “Appellant, this Appellant’s evidence. law failing deceased by shooting testifies wife saw the difficulty, examined We the time.” son, her present being this of facts on the statement original record and note to the court this court returned, direction of trial was under the orig from the below, more quote do than and we not therefore can Crim. case, Texas of this appeal inal but on the second opinion, was written 923, wherein the opinion 113 W. Rep., S. Rep., testified “Mrs. Dobbs had appears: this statement myself, that when fired was gun examination she north of direct just State. Cabbeba v. 1909.] chickens; say heard deceased some that she up her house putting land;’ lies to swear on me about voice, Tap going a loud them, and, she when got she see up she ran to where could she was, saw from where her husband fifty yards within forty her husband’s buggy grab deceased out jump gun; broken, her while, finally they scuffled over gun it, and then barrel of and deceased the husband stock retaining said, strike, if to when appellant barrel as gun deceased raised me,’ fired.” Thus it will him the son ‘Milt, don’t let kill when an that Dobbs was active be noted an inspection killing the act the encounter and participant and that procurement, to his invitation response course, Of it is obvious that eyewitness. fact was testified to an evidence required. this case no on circumstantial State, 50 Crim. Texas Rep., next case cited is the case Keith v. evidence 63. That not a of circumstantial "case Davidson, wrote in that at all. who point I it to quote enough brief statement of the facts. show gives raised therein: “The what was in his mind in on the issues passing residence, and that when reached the after evidence shows deceased, sat introduced to awhile on the conversing mission; there, mentioned his had come gallery. Appellant his troubles, for with him about talking family not the purpose of friendly way talk in a and about his quiet but with him treat As as this his, ment of mother. soon statement was appellant’s, his from where he was a position, sitting made deceased on got up with cot, appellant, in the direction of his hand right started knife, he a where had ‘If reaching towards pocket, remarking, you,’ I will kill your accompanying expression game, back; him to an told stand he did not Appellant oath. want him; him; hurt did want trouble with not come on until continued to come he came him. Deceased close quarters. killed.” fired, shots and deceased was In Four discussing necessity charge of a circumstantial question of the matter disposes summary Davidson fashion: do the court erred in failing not believe on cir charge “We admitted Appellant hilling. evidence. cir cumstantial the two parties gallery together, cumstances place ap that, killing even juxtaposition such close without pellant a not, be case confession, it would judgment, our for calling all did on circumstantial evidence. He charge shooting.” State, 35 Texas 264, Kidwell Crim. Rep., The facts of the case in v. facts, obscure, are but as we understand interpreted somewhat v. State, of Moffatt in the case same light in the of the companion than case we volume, 257, point is no more it page In course :opinion, mentioned. just Judge Henderson, court, says: speaking 56 Texas Criminal evi asked a on circumstantial in this case

“The appellant that, the accom although in that connection dence, and contends dark, at the it Trilling, yet, being was and saw present plice from the par some little distance time he very killing being of the court occurred, required such a case when it it was ties The fact the witness to evidence. on circumstantial why furnishes no reason a charge was an accomplice, the transaction evidence, and at the time the should on circumstantial given was near and in such juxtaposition, fatal was he so stroke given of the two inflicted parties he not have seen one may though blows, fatal, yet, which were in the view the stabs and several of difference, case, make no as to their guilt, take of the it would stated, As which one have caused wounds.” above may case, Kidwell case companion facts are not given follows: State, Lay is recited the witness of Moffatt v. and Kidwell came to where witness “That after Pratt fell Moffatt had killed Pratt. Kidwell had was and said that standing, down.” hand, hanging it with So carrying point dirk a case in this of circum it is obvious relevancy has no sort of to the case under stantial evidence and of Holland Texas Crim. here. case consideration was a less in That case. The point. burglary, is still Rep., Sehroeder, house whose was burglarized, evidence showed that one door, and that two had left the room closed or three just down stairs and his wife minutes after this he went went stairs up her scream. That when their room and he heard his wife defendant in there. Here the the room saw reached she testimony. is shown The fact by positive door was closed was in the room is entered the room and shown the appellant room, admitted testimony. the" Appellant though partly open gave explanation the door says There is no discussion in this for a closet. looking the court did not believe the a remark that evidence further than as to the hence followed that breaking, did not err in on circumstantial refusing evi the court State, 35 495, Polk v. Texas Crim.. Rep., The case of dence. on motion at some for length opinion is discussed rehearing cited, in least, of all the cases There it point. unquali is perhaps was shown appellant by that the guilt positive fiedly appears Hurt, case. Judge Let us examine that testimony. speaking says: “There was court, in the course of positive act, in the main participating killing; of the parties evidence in such close not, juxtaposition the facts were as rendered and, if In the declarations of Rufus Jami- unnecessary.” dying such charge “Mack was deceased, among things, says: other son, Hughes were several shots me. I Imow this. There pistol one that shot were hoys all I how but many though, fired. remember don’t The State. t. 1909.} Austin, as if looked shooting of the the time At shooting. who were Parsons boys, shooting Biz were Mach with me.” So both who boys me and the well as as the girls, of all the parties and the participation shooting act of the fact and this testimony, by positive disclosed affirmatively same to be Hurt, likely was not who by Judge recognized is expressly of Adams is the case Nor in his opinion. mistaken a horse theft. That was case of 470, in point. Crim. Rep., Texas are ease, opinion, stated briefly The facts in the of the day alleged Lowe on the the witness by was “seen a which led along near road said theft, pasture, outside of just colt, which seemed ahead of the just fence; and the defendant him, witness, as he told said passed him. He be following fol and that he was out of pasture had jumped the colt just him some to drive back. At him, going and that he lowing on, road, which led along pasture in the same further distance Counts, driving witness and was then was met fence, he colt road. Defendant offered to sell the said along colt said dis He told him that the colt had the witness Counts. him, he had been and he was afraid riding and that temper hold out to make the- he was on.” This trip would not evidence, first, when first seen disclaimed positive animal, and when seen a short time very any knowledge up ownership he was the colt and set a claim of driving thereafter testimony More could not well be taking to it. im to make necessary It was not order the evidence of agined. should have anyone actually seen him taking positive put him, hand on the horse’s mane and around right put rope good the facts are shown positive testimony the property him; that when seen he belong did not first this recognized back, stated he was to drive the colt some going and that at road, further on he was met wit distance same another him ness who saw the animal and heard him in set driving person of ownership claim to the colt. There is no up discussion case, Hurt in this but he of the claim and contention disposes erred in on circumstantial evidence charging “If said had language: colt out of the jumped pasture, said appellant, stated witness Lowe saw him at the time or about was in the act colt, and the witness taking possession Counts met him in -a very short thereafter. But it be time . conceded no witness saw him in the act of very pos taking colt, yet session of said juxtaposi defendant places fact, tion to the main which is the act of so taking the omission to the charge on circumstantial evidence give injure defendant’s The next rights.” calculated to, State, 31 Crim. referred Baldwin v. Texas Rep., very nor Davidson brief, Judge are the facts stated. wrote opinion 56 Texas Criminal failure says: other “The among things, in that law of circumstantial in relation to the jury to charge all, of sufficient to importance require if error at is not distance from a reversal. The were tracked short missing hogs taken, and discovered in the they were posses at place brother, them, and who sion and his who driving defendant witness saw butchered them. While no drove them on home and criminative yet take actually possession hogs, defendant to main fact’ are in such ‘juxtaposition circumstances de injure was not calculated to charge the omission give to, State, The next ease referred Crews fendant’s rights.” 533, Crim. was a That testimony. Texas case of Rep., positive murder, was a and is well briefed both for the case counsel usual defendant, State and and seems to have received more than .attention both counsel and the court. Henderson in that testify case “While it is true in this that no witnesses says: saw the act of the facts and circumstances killing, yet are of a this case character to defendant such place proximity as to the fact of to render such killing juxtaposition besides, Mrs. unnecessary, and the statements deceased and Crews were in nature of The whole facts positive evidence.” show, doubt, the shadow of a evi beyond taken together true, dence was as the statement will show: following mother, little in the house heard his before boy just “The she wound, shoot, Crews cry received her death out to and the him, father, as soon as went as of the res part gestae, Crews, it, said that it was when asked who did that he robbed Joe; him, and his horse and he seen a rode off on short time homicide, thereafter, near scene of the riding deceased’s is the So that here horse, spontaneous with his of a gun.” cry of his mother to the declaration her ex little child testifying wound, she received her death before tremity just crying out shoot, father, and the who was also killed at the to Crews not of the res part gestae it was time, stating spontaneously There can be no doubt killing. this was Crews who did State, Nor is the case Bennett v. positive testimony. a case of was a 216, in That also case of point. posi Crim. Rep., 32 Texas quite us examine the record. Let evidence. tive but in three length, paragraph the facts brief, given nor are Simkins, statement by Judge written opinion, to tell jury not err in failing “The court did made: evidence. The evidence was wholly was a case as testified guilt, as to an appellant’s and positive direct seen, was not facts were in shooting eyewitness, as to shooting equivalent such close juxtaposition sufficient.” The case given testimony. direct v, Crim. still less Hardin Texas App., point, 173 The v. State. 1909.] case, in other Clark, among who Judge opinion wrote wholly states: in case is not circumstantial “The evidence things, scene of the in a of defendant legal presence sense. thief, actual were theft, active with the confederation a The rule to cir established evidence of nature. extended to a case of that cumstantial evidence has not been yet cited the majority character.” These are all the cases in opinion, 442. State, v. 43 Texas With except case Beason Crim. Rep., case, nor its have no reasoning of as to conclusion we make, to nor do we from in complaint any respect. differ in the case is in opinion by Judge written Brooks contains trinsic is in evidence the most careful consideration and clear accord, I believe, views, my if doctrine applied in here, view, that case is to obtain under case should be my reversed. The lengthy from the following quotation case is a better statement I myself views than could write: my “It has been held that a on circumstantial is charge evidence nec essary only when the rests ‘solely’ case and ‘alone’ circum stantial evidence. The construction the word ‘solely’ ‘alone’ has been construed in repeatedly this State of last every court resort, and the decisions this State have been followed with by the courts other approval is jurisdictions. The rule this: it is where only necessary fact, or, That the main as one case puts offense,’ it, or, it, ‘where the of the gravamen as another case has crime,’ of the ‘where the act rests solely circumstantial evi a dence, that then it known becomes case as a case of circumstantial a charge evidence requiring upon that. In 15 case, Buntain Crim. Texas White used App., the following language: ‘If a required charge law of circumstantial evi in all dence cases where reliance was had upon circumstances to fact, then, indeed, establish particular few, there would be but in which any, cases such would not be required; but A is not the rule. charge upon such circumstantial evidence is where only required the evidence the main facts essential entirely circumstantial.’ In guilt purely the Hanks 56 W. S. Rep., (opinion rendered this court), in reference or not positive to whether evidence of uttering forged instrument, where indictment was the forgery, was sufficiently direct lift the case out realm evidence, circumstantial the follow used: ‘We are aware of ing language rule, and we adhere sаme that when main fact constituting gravamen offense is direct proved testimony, merely the intent act was done is with which the proven will on circumstantial evidence not be absolutely necessary.’ best point

But Jones perhaps Texas 490. In this case the discussion of Crim. Rep., principles ap is involved. the risk At plied burglary being prolix, but 56 Texas Criminal clear, from made may quote copiously order that the same Starke, 862), ‘Mr. on Evidence (section that case: work exclusive its ‘The force of circumstantial evidence says: nature, cir and the mere with the hypothesis coincidence of the insufficient, unless exclude abstract, cumstances being, most every other is essential with the supposition, inquire may attention other be which scrupulous what hypothesis The may wholly or facts in evidence/ agree partially Beaver’s case said: of no hypothesis ‘We can conceive which, effects, the order of natural causes and the facts can be proved explained consistently with the innocence pris oner; and this is the test of true circumstantial evidence. It excludes 530, all reasonable doubt 58 537. Ind., of the prisoner’s guilt.’ ‘But act, principle applies only proof proof the intent. in a Accordingly, case of an instruc burglary, tion which contained the sentence was refused: following properly ‘Where a criminal is intent to be established by circumstantial evi dence, to be not proof ought only consistent with the de fendant’s it must be guilt, wholly inconsistent with any other rational conclusion than that of the defendant’s guilt. The court said: ‘This rule is when the proper act which is claimed to be criminal is to be established sought by circumstantial testimony. But when the act is proved by direct testimony, and all that remains to be found is intent which accompanied act, and which may he inferred from the circumstances act, accompanying then this does not In principle apply.’ the reversal of this case its upon former this court said: appeal ‘How, while it is true a confession would burglary to the take the case out of rule, yet alone, a confession to theft under the circumstances case, of this would not make the burglary case of evidence. positive The recently the com after possession it is stolen would be only a circumstance pointing burglary, the corn have may been stolen, yet no burglary have been committed.’ See Woolridge State, 13 443; v. Texas Crim. 59 App., State v. Calder (Mont.), 903; Pac. Rep., State, 29 Leeper v. Texas 154. Crim. There App., that, fore it is clear where the act the main essential constituting fact of crime is evidence, testified to direct it is not a case of circumstantial evidence. But whеre main fact or the act the crime is constituting by indirection, shown is a it case of cir cumstantial although may intent rest upon positive What is proof. the main fact or the act of a in a crime case In burglary? homicide; murder it is the fact of the it is theft the act of the it is not talcing; burglary the intent with which committed, it may be with the intent to commit the crime of theft, robbery, murder, or rape, any other The main felony. essential fact of is the burglary breaking entering of the house. The commission of when the crime intended the house was entered need 175 ¿909.] Caebeba v. State. executed, State, be 1 yet crime is Martin v. complete. 525. Texas Crim. In this App., both this trial and former human appeal, eye saw, testify nor did a human lip to, the breaking actual been house alleged burglar ized. That was broken and entered solely upon inferences depends and deductions. It was arrived the method exclusion. True, corn; but what appellant pleaded guilty theft was the effect of an all the admission of plea? merely facts theft. alleged and information complaint charging ‘A plea of Mr. guilty/ ‘is a of whatever says Bishop, recognition State, Texas, 334; well Doans alleged the indictment.’ Crow v. 36 Texas 468.” Crim. Rep., The facts of the case last cited are set fully more out on the first which will found in the Texas Crim. appeal Rep., Texas Ct. 921. syllabus in that Rep., briefly states facts, which, believe, as I are much stronger than facts this case. This syllabus is as follows: “Where in a prosecution for burglary there was no evidence as entry breaking, pleaded the fact the defendant had to theft guilty committed in the and alleged stated that lie would burglary turn State’s evidence his codefendants and that knew against enough he on them did to send them to the a penitentiary, not amount was a confession of the and it error to refuse burglary, charge in circumstantial evidence.” It was also shown the that case that taken from house was soon property burglarized the thereafter found Beason, it is possession of and stated as a reason the why on should have charge circumstantial evidence been the given that flimsy were of a character and fastenings evidently such as might wind, or, house, be blown the by the an open being outhouse, some some person might pushed meantime of the doors open so them, and left and because the State’s evidence showed that after in o’clock on the one of the night question doors was open. the cases and all the cases in These are cited the majority opinion, and we it will appear submit that reference to the brief resume an clearly each more inspection of the original none of are cases of them circumstantial opinion evidence, except case Beason which was supra, the v. twice reversed be- a the did not on give charge cause circumstantial evidence. court, too, of the as conceive overlooks this distinc- it is In cases where said was such juxtaposition tion. as to relieve the charged the offense court of the

respect necessity on the nearness a defendant place homicide, both as as respect was shown well was committed. offense which the Here the body time at was not discovered for many and his death hours—six the deceased of the fatal as firing shot seven least—after testified to or as an It is not shown except inference witnesses. 56 Tesas Criminal was fired. shown room the shot It deceased was when shot and it firing he was in his time before the room short many is shown that his dead was on couch hours body .lying who thereafter. It fired the shot persons not shown that or could see slept window knew the exact where spot body may or him. knew had killed While circumstances , that he was do, very as I believe point strongly to all, house, after shot window side of east through is, denied, think, I as be strong the evidence it can not testimony of the strength circumstantial. It is not the weakness evi on circumstantial the court required give dence, not its quantum, it is the character of the does strong whether is weak or case the evidence given demonstrated abundantly This is any sense the rule. change unnecessary will be sustained all of authorities. few liberal extracts from a quote many of make them. We shall position. of the our support cases so our views illustrate State, 28 Texas Crim. Among Puryear earliest eases is that had the honor to App., 73. In Brooks our brother the evi largely upon counsel. The rested testimony of the State dence of the appellant Essie After Puryear. stating or lived in the father of the was present child and that one “On the morning house states: except Puryear, she then child; near it was 13th I birth to day March, A. D. gave I him before told daylight and no but defendant. present one by myself, the birth stand I couldn’t child that While as with them. I said could some well stand it without one knees, my I pressed birth to the child the defendant giving house, my and he rooms to delivered There were three the child. was born upstairs, one room child two downstairs. the child he went downstairs in the he delivered front room. After cried, and baby fireplace to the a cord. get to tie the string I then came He called the cord. defendant tie the come and the room and took out of upon arm, child his left and took something, into the room, side and water I heard him pouring and where then him asked room, came back into and I mv was, him child I asked right.’ and he sаid he had it there all ‘out where, defendant and he replied, there in the water.’ ‘out then with fire, made up went into the room and returned side ‍​​​​​​‌‌‌‌​​​‌‌​‌​​‌​​‌‌​​​​​​​​​‌‌​‌​​‌‌​​​​‌‌​‍child he was it, between him what some wood. I saw and asked it, to do then going put and it. He said he would burn said, John, wood and do fire, ‘Oh, into I don’t babv noise, that.’ The child none since any did not make and had made he had carried I pouring it out of had heard him the room. the water out in the side- room after he took the child out there. fire, said, When defendant threw the child and wood in the and I ‘Oh, John, that,’ don’t do he did not make reply, but turned 1909.] The State. weak, time, very was at the I flooding was smiled.

towards me I a little After at the time. the child else about nothing and said He I was flooding. water—that me some get defendant told window and the door shut kept day, fire all large kept in his was defendant morning, It was a warm down. curtains was The shirt elbow. at shirt was patched sleeves. His shirt He its color. not tell could you faded until blue, but had originally He it off. he pulled when Sunday morning, on until this shirt kept the wrist.” shirt close to of his the left sleeve some blood on got everything except participation, was presence, Here juxtaposition, other was in the and the child in one room witness was lacked murder, intervening; a moment time of the murder bloody except to see evidence nothing being positive a charge was held that in that case it yet eyes, with her own In the have been course given. should evidence on circumstantial readily “It will be language: Hurt uses this the opinion drowned or all the child must have been if killed at perceived to show that its death, tending strongly circumstances burned to drowned, If killed, was caused death, drowning. if it was If burned circumstantial evidence. resting purely upon a case child death, evidence—assuming we have a case of If on the fire. it was not when living when living placed fire, theory that it was burned to death is on the then the placed body fact that was thus disposed not in the case except malice, that defendant had express assuming tend to show may it. child drowning murdered the as to the methods

“Back then to the the child question drowned, If then a case of circumstantial killed. evidence. The proposition. Being facts demonstrate to such a case should have been

evidence, the rules applicable given done, This was not such instructions jury. though to be given by counsel for defendant. requested were prepared absolutely certain that error, unless it the child was This was means, By Was this the case? for the to death. proof burned it was drowned. to show Essie strongly Puryear more tends when living placed state that child the fire. If does not on the fire placed when this fact is living child established circumstances, we have a and hence case of circumstantial evi- relied theory either State. But let us dence con- for the circumstances—the argument cede facts—were amount positive proof the child such juxtaposition death, theory still it was drowned might was burned and the jury, defendant convicted been adopted upon have instructions the rule proper without theory, applicable circumstantial evidence.” This case has depending a case to and approval referred to with terms express frequently been 56 Grim.—12. Vol. 56 Texas Ckiminal 489. Rep., 34 Texas Crim. State, v. of Leftwich approved Trejo view is that same illustrating Another case accuracy insure 546. To W. Rep., 74 S. Crim. Rep., Texas the substance opinion, contained the statement from quote Aguillar “Celestina follows: is as testimony. criminating of the defendant came to deceased; that and defendant knew she states that killed, and deceased morning about o’clock

her house He then forced door, refused. which she open to asked her witness, and for slap and tried house, to grabbed, into the way his him, and held caught She at witness. striking while was a little De the house. approaching or three persons heard two him, and ‘Celestina, Celestina,’ and knocked, said, door, and to the ceased came told answer, and was She angry. witness did not want defendant m would answer. De own, and that she her mouth was her hi for a drink of mescal. door, in and asked came opened ceased informed bar, and stood She up. mosquito raised -the Defendant . told deceased to out mescal, get and defendant she had no deceased for mescal. voice; asking and deceased kept room, in an angry deceased, ‘You door, stood, and said to' went to the then Defendant her that visit her at mid whore; she has customers with the stay room, Deceased remained in the his departure. and took then night;’ leave, him to him that informing Witness begged a drink. asking man; well, knew him and that he bad she very was a defendant went the door and some Deceased injury. return and do would and stay; that he was away, going outside to go one told some also. concluded Finally to leave deceased deceased entreated witness and immediately the door. Witness shut went out of leave, and 'to door, had She was very defendant cut. rope with a tied the without and had come in up nights sleep, two been having sleepy, on the Mexico, immediately threw herself from train on the aby pistol was aroused shot near the She sleep. went bed bed, She from the got up was situated. her where window b.ed Celestina, her, ‘Hist, He remarked to the window. saw defendant I did it.’ Smoke say coming through not to be careful did not see arms about de window. She shutters since had left her house and coat changed He had fendant. remark her he went making, the Upon shooting. before her who daughter, began blowing police aroused Witness away. whistle, witness De La Rose and blowing police After whistle. had and asked what happened, to the house came Rodriquez a shot.” Here there defendant had fired them that informed witness shot, smoke of motive, pistol pistol anger, jealousy, man, defendant, a dead with but slight sug the presence been committed by anybody the murder else gestion could murder, both with putting Trejo juxtaposition close respect time and with the place, strongest possible evidence motive. Yet, the witness did not in fact see the shot fired and the Ú909.] The State. testimony positive this of making only lacked

man killed. judge presiding our present On this question and not circumstantial. ease was contended that seriously “It is also language: uses this because is reserved evidence, and exception circumstantial one of of case. this character did law not charge applicable.to the court that doubt evidence, a in an issue in case is left doubt Where If the always presumption should be solved in favor of the accused. a peculiar it is of and reasonable doubt mean anything, innocence resolved should never be force this The facts particular point. court or the trial in favor of reasonable doubt guilt against the cir law. While is true that submitting it charge upon so such may cumstances be close and accused cogent, throwing may require charge main fact not juxtaposition upon evidence, yet, upon circumstantial when the are in doubt facts theory, this it is the safer regard and sounder rule to charge evidence. not circumstantial In order trial justify certain, law, be taken as charging phase must first, that the witness out Aguillar truthfully, and, testified growing of that, secondly, that was at the window as testified her, and, thirdly, kill remark to was a her confession to ing. While these may conclusions the court may proper or not deductions from testimony, still dowe not believe sufficient it of cogency it from the rules of circumstantial or exempt it within bring the rules of evidence the exclusion of the law of circumstantial evidence. another Upon trial the court should If give phase of law.” correct, stated, doctrine is is facts should never be resolved in favor of guilt against doubt, reasonable trial court in submitting law, theory on what or by what denied a reasoning charge on circumstantial evidence in this case apparent. Again, take the ease of Guerrero v. Texas Crim. 80 S. Rep., W. 1001. The Rep., facts in that case and respect to them are thus stated by Judge Davidson: “A serious question the case the omissiоn of the court to the law applicable evidence. McCombs, Witness Will nephew owner, alleged testified that while riding in the Irvine pasture heard four shots, and after a short interval of time another. After shots, the five hearing horse, hitched his half and walked a mile to near where he heard the shots. He came in of defendant sight aup hanging pig in the fork of a bush some and a half mesquite two or three feet high. Witness hid in the brush. After the hog hanging up, defendant went witness, direction of within when about fifty yards worked lever of his gun several times. He did down stoop or pick up from the He anything ground. then passed within about -thirty steps witness, and went in the direction of his home. Witness examined the pig and recognized it uncle’s. pig weighed thirty about pounds. He informed his 56 Texas Criminal Eerorts. matters,

uncle of these returned to where, the Irvine pasture, owner alleged testified, he found the hog in the fork hanging the mesquite bush. dead, It was and was aby killed From gunshot. this trailed a track. The point sheriff arrested the appellant following day, and en route to jail carried him to the point designated McCombs, the witness there and fitted the shoe was appellant upon in the track found the which ex- wearing ground, corresponded shots, actly. it was between the cessation of the four long How McCombs, shot, the of fifth Will and the firing mentioned witness fifth shot before he his or how after the of the hitched firing long he heard shots, where the is left and in direction horse went the of one half is stated to be about mile. to The distance conjecture. him stopped, recognized in of witness sight appellant, Coming in bush. mesquite the It hog the hanging the man he saw that shot, appellant is was .had further shown that the hog evidence also that unquestioned is Winchester with him. There residence, who a shoe wore cor- was appellant’s there a Mexican at' This evidence is exactly appellant. worn with that responding that this by appellant from the is State’s contended witnesses. evidence, and upon required purely case depends circumstantial phase contends law. State court to of the submit that juxtaposition facts proximity in such close placed appellant the law. There phase charging court was in not justified the State’s sustain conten- are which some in this State authorities these cases place tion. facts of But we are of opinion immediate to the act relied nearly relation of the accused more record. While in this the fact the State than does the in a bush and that he had hog hanging seen shot, be hog cogent circumstances might and that gun, is a and must be an in- guilt, yet it deduction tending prove in justify jury would concluding these ference from facts that the facts were not are he shot the therefore рig. We imme- proximity nearness sufficient their cogency duty the court charging diate transaction to relieve noticeable the fol- Especially law evidence.” circumstantial the fact “While that appellant this opinion: lowing language gun, he had a and that in a bush and that hog seen hanging prove shot, tending might b'e circumstances hog cogent an inference from these and must guilt, yet is a deduction be he shot justify jury concluding pig.” facts that would here, case and this the whole On the general proposition shot, cir- it a case of makes without to who fired fatal reference demonstrated, authorities, could be cumstantial evidence under believe, authorities, lan- as I of innumerable by the citation sufficient above would seem to be guage and facts cases cited stronger there is even But my opinion. support the correctness to submit ground was required the court The State. 1909.] In theory: rests on this and that hint of statement or claim or is no pretense Welch, shot which killed Sandoval fired the statement, a shot of them fired that one kill him. did Can Which one? window of his residence. the east through be left free determine this say? Should the jury true, judge

under If as our learned presiding the evidence? it be says, rests and must be con jurisprudence that our whole criminal doc strued with innocence and the reference presumption doubt, should it not rather assumed that San reasonable trine shot, doval fired the case? Was ap the law of submitting not entitled to a submission with pellant reference the presump favor, assuming tion bis an conclusively not on assumption the worse state affairs him? Is it not against evident a case is where it in doubt which two fired the absolutely parties of shot that is no the case than if the stronger against appellant posi tive testimony had showed Sandoval the Or shooting? that did conceded, if this much not be is can evident event not that in submitting the law the of was entitled to a appellant charge based the theory most favorable to him and which would authorize the jury theory event found to be true to the undoubted law to apply the facts of the Is case? this not clearly more where demanded is evidence or motive of except hostility one political shared hundreds of people in common with ? person the charged whether Ordinarily determining a case is one of circumstantial evidence, it has been that found only one and person charged but one of the elements suggested above entered into the question. is, the Ordinarily only question, was the shot the cause of death the and appellant’s connection with the shot by positive shown testimony and was he the shown person to have been of a criminal act? guilty In this case both the ques tions occur. In the first place, addition to the that question shot, whoever fired the the facts the showing killing, are not posi tive, but did appellant actually not fire the shot his complicity rests alone on circumstantial evidence. Let us assume that the jury have found that Sandoval fired might the shot. Then how is ap is no guilt shown? There pellant’s suggestion in the testimony of that Mexicans one word was spoken these parties. these That did fire shot who not the raised his person the hand voice, or his did or any possible one act made demonstration. If appellant shot, guilt not fire then his rests did these circumstances: to a party deceased; adverse political belonged with Sandoval camp hostile 11 o’clock; was seen in the about Pena Cayetano seen at the house late he was that night; twice of the deceased window was- he was traced later street, with public along such addi walking seen Gonzales lend to the circumstances of his might open jury as the tional force Reports: 56 Texas Criminal six for Mexico months after departure is tragedy. these be denied that circumstances are indeed testi strong if the Pena and his Cayetano wife is to be believed. mony But is my mind so clear demonstrably of doubt. On this fortunately not admit we are not question courts, many learning especially without benefit court, and so conclusive as that no man decisions so clear err. cases and the most Among controlling able to ought 344, Crim. one, Texas Early Rep., recent was written S. W. in which the our brother Rep., Horn Early In and Harmie were indicted Brooks. that case Jack I Calloway. put, murder of one Terrell want to contrast columns the two cases. In parallel it were facts Early were close friends. In this case Horn case In Early Sandoval that case and Horn were were strangers. homicide, on the but were together, only night together In early from afternoon. that case threats were shown by In this Calloway. case not word hostile Early against spoken enmity In and hatred deceased. that case bitter were shown In this part Early Calloway. on the towards case In Early that case was shown where ground strangers. In difficulty fatal occurred. this case same fact In proved. In stayed there was an immediate this case flight. that case homicide, near scene of for six months when he did this, Not going. only was no but the wit- leave there secret men were seen Early two near say nesses where us the record: “Nelson had lay. Let retired and Calloway quote by a noise on the and was aroused outside. The first gone sleep, do; ‘That one will let him saying, he heard was some up.’ thing window, saw bulk out of the of men He looked out then office, standing up one and another in a distance from some low a moving about was little and standing up The man he position. object in the The other low position was man. tell that could men at was one two that time.” whether it not tell he could it, record showed, as the puts Calloway in this case The evidence The evidence respect cut literally pieces. had been Horn were shown to each “Appellant follows: was as weapons four with three or knife, blades large spring-back owned a have Early following fixing statement find inches long.” Again, to have worn was shown “Appellant scene: undoubtedly on the band.” leather hat yellow hat with difficulty- night a space extended over struggle The shows that evidence further four to in' from of feet ground twenty-five length twenty or leather hat band of appellant eight feet And further wide. struggle where the evidence found ground unon in the “The appears statement record: .shown. This further malice, bitterness, deceased was one of toward feeling appellant 183 v. State. 2909.] very “On the night This also appears: and hatred.” statement depot, and Harmie Horn were at the while difficulty, appellant Axtell, with had a conversation take the train waiting used Stirman, language: appellant John which conversation evi right.’” has treated us 'We don’t like He not Calloway. difficulty shows that at the time in that case further dence some pre and raises Horn was in an advanced state intoxication unlikely such as render that his condition sumption In that Calloway’s body. he had all found on inflicted the injuries law of court should have on the charged case it was urged and in passing circumstantial assignment, evidence - “The for the State shows says: appellant Brooks evidence is This made manifest circumstantial scene homicide. no there is evidence as well as confession. But appellant’s testimony any guilty participancy appellant disclaims and the any homicide. Appellant expressly participancy, established, crime, that he assisted in the commission of the if true, duty alone. is circumstantial evidence This it was the v. of the court to the law circumstantial Jones evidence. 490, 34 31 W. 1059, Texas Crim. 30 W. S. State, S. Rep., Rep., 28 11 W. 664; State, 73, v. Crim. S. Rep., Puryear App., Texas 105; State, 29 929; State, v. Texas Crim. v. Rep., Riley App., Trejo 127, 546; 45 Crim. 74 Texas S. W. App., Rep., Beason 193; 442, 96, Crim. 69 A., Texas S. W. L. R. App., Rep., State, 24 Texas Crim. 318.” Crowell v. S. W. Rep., App., noticed It will be contains the expression “ap disclaims expressly difficulty, but pellant participancy” it manifest this disclaimer could issue have no effect on the as to whether the law should circumstantial evidence question Where given charge. been the State’s is circum evidence unless the killing stantial admitted a defendant must the court law in it be respect circumstantial evidence. can How the disclaimer of contended or the character law, change can killing, unless indeed admits the may and is when The test required testify at all? must be reference to circumstance, and incriminating evidence of State is produces testimony, the law of circumstantial evidence must be given His charge. plea of in is a and is guilty denial of everything itself a disclaimer as character complete and testing perfect which charge he is the witness entitled as if he had gone in stand and terms denied A careful review killing. case, Early supra, has me case convinced it is more direct held that bar, than the case at and how it can be case be reversed on failure Early must account yet and court circumstantial required evidence is not on circumstantial case, held Eepobts, 56 Texas Ceimiiíal I confess affirmed, is something a case to be and is given to be candor, in all humility, certainly and I with, becoming hope morals a and of mind If in realm understand. I do not as “the spider’s needle as fine with be constructed theodolite could dis thread,” possible mind can draw no finite most attenuated disadvantage the two tinction between cases new. was not Early case the court here. The holding the decisions following Judge Brooks infants he and I were when both from the time our Court Supreme to and reaffirms for his action refers arms, authority and as on a rule that where is the universal Puryear supra. of the accused’s presence the evidence trial for homicide circumstantial was, aside from such presence, of the crime scene established in the crime was his participation evidence on circumstantial alone, the refusal to charge evidence is that of Burrell on this early question erroneous. cases Among the sur Texas, opinion, 713. That concurred T. court, Boyall John of our old Hemphill members viving our were the Dii Wheeler, Majores who with Judge Lipscomb Mansfield, rank with Hardwicke worthy to judiciary, judges of our Marshall, Cooley Sharkey, and with Holt, of England, civilization, and had added luster to our country, own a court that have been' the they whose have been the inspiration, decisions in the annals that have followed foundation, of most that is good MacCauley’s when traveler from them. If the time might imagine London and view the ruins of Hew Zealand should stand on Bridge Paul, of these men will stand virtues, Saint as the performances, in this unabated and in unobscured. vigor glory and the same rule con Wheeler is the same doctrine Judge case, and later laid down’ Puryear tended for Brooks in the him facts? James Burrell and Early case. What are the shows, brief, E. James Burns were indicted. The evidence jointly Ewell, of Elizabeth in San these came to the house parties dinner; served with on the of the homicide and were Felipe, day Bird, deceased, that while at this house came in and some conversation Burns asked Bird if ensued which about travel, was, asked him which he that he and then which replied he was La way country and Bird going, replied up towards e said, route,” and Burns “W are and invited Grange, going Bird them, travel go suggested together, seemed to morning It seems about o’clock next agreeable. wounded, Bird brought back to her house and made to Mrs. Ewell a declaration from which we “On dying quote following: Saturday him; she asked Bird who following, shot he said him, said, James Burrell shot and then Come close to me and I will tell you it; said, all he, Bird, about ‘We had no quarrel; behind; said, Bird, riding afraid;’ ‘Bide don’t be up, he rode State. The 1909-1 'Ho, said, I never arms.’ One said, pack armed?’ you 'Are up; one his head Burrell shot him (about as he turned and yourself,’ 'Defend Austin the timber San near cross Felipe, miles above seven 1854. On Thurs the Bird about the 15th of August, died County). be would not they Bird asked them if was so day happy, he, men the man Bird told say. lieve what would said he dying the names; name; with, his their traveling they was and told him said, Bird Burns. they gave names were James Burrell and James Felipe San when he was wheeled towards shot he his horse and ran his of and fell off his ran out horse. He said a stream of blood shot; when he other mouth said each the two men joked of them were talked as if one country about strangers; I shot him.” had arrived. know James Burrell just Bird said use by the Bird made other witnesses that appears me “I with shall die and two men following riding language: Wood testimony of shot me.” from the Again, following appears sensible; me; F. Washam: said he thought son ''Bird was knew die; two ex said Burrell and Burns shot him.” last should men to the effect that Bird had declared that two pressions court, have him, must had shot light opinion witness been be a opinion construed as to mere conclusion his Ewell James Burrell shot and that statement to Elizabeth him was the correct statement of the actual transaction. Burrell Burns traveled found after the homicide. together were together Burrell How, here have the and Burns being together deceased, Bird, them at Burns’ re when Bird travels with appears; Burns is is man is when shot fired quest; present killed; Burns with after homicide is found continues Burrell him more His the time of than once thereafter. presence is he was homicide shown. That Bird with them when Burns’ invitation abundantly killed at is established Both Burrell and Burns were tried testimony. together; Burns law convicted. As to an instruction on the of circum both and refused. The of con requested judgment stantial evidence was re as to was affirmed and that as to Burns was viction Burrell did should versed for the reason the court give, on law of circumstantial evidence. given, hаve and convincing Wheeler that case so clear it is not so clear that we insert it entire: “But question instructions, refusal of and in is not both error defendant, Burns. case of the the court in reference to the If as a in the second he be guilty, principal degree, To commission of homicide. abetting present, aiding him, tends to convict crime, of which the evidence constitute If he in the act. part, there must been participation, codefendant, and being present, intention cognizant a common de it was out of consenting, carrying 56 Texas Criminal 186 deed; and with him who the committed equally he is sign, guilty in is stated the correctly general principle the subject upon crime, in implicate him the But in order to of the court. charge com companion of his to of the intention have been aware must he a man For ‘although is not sufficient. His bare presence mit it. it, in committed, take no part is felony whilst a be present it, will not with those who committed in and do not act concert d he di not en because merely in second degree, be a principal the felon.’ (Roscoe or felony, apprehend deavor to prevent Homicide, L., 6364; 157.) Whart. L. 213; Whart. Am. Cr. Ev., Cr. and par of his companion aware of the intention Whether he was him to implicate be in order it, proved, in was the fact to ticipated him, was the factum act. That to criminality of the in the And his must rest. of which conviction probandum, proof was no There that, wholly circumstantial. the evidence as to his companion, of the intention of he was aware proof time, manifesting act at any overt or that he committed not, itself, of presence His part. on his criminal intention not, se, of per guilt, evidence him. It was to inculpate sufficient circumstances as considered with other only of force any proof, main be "the fact to guilt. his It was not to prove conducing But his itself, any criminality. did not for, imply it proved; and before and after and his at conduct and companionship, presence main act, from which the were circumstances the commission design intention and in the criminal his participancy fact of therefore, is that as inferred. plain, was to be his companion Although joined circumstantial. wholly evidence was guilt, to trial, a dis he was entitled to defendant the other have law to of the evidence tinct consideration All the instructions jury. charge to it given applicable sufficiency tests of the circumstantial the legal respecting asked refused; were and the a conviction warrant evidence or embrace in distinct proposition, did affirm. refused; is or inform the what jury instructions substance of such evidence. The fifth and sufficiency test of propеr refused; former, because not rightly were instructions twelfth latter, abstract; because of the assumption and the correct was no evidence the case contains, tending it which intention of Burrell. The first and to the privy Burns was show same ex objections, though liable second, though elementary a learned philosophical language pressed comprehension jury; adapted not well were treatise, them, to refuse form was error hold that do not and we Hr. Starkie and other elementary they propounded. which doubtless defined with define, and have undertaken writers of, the tests susceptible the subject accuracy precision all the finally evidence. But sufficiency legal 1909.] v. The State. which will amount to sufficient

admitted that the circumstances In of a never be defined. their disputed previously can proof only nature can never matter of definition. The general be satisfy test are is their legal susceptible sufficiency of. 2; Ev., mind and conscience of the Greenl. sec. jury. (1 Ev., 514; Stark. R., Texas Other authorities 514.)” might cited, but these seem to be sufficient. record,

There is another error in the as I On the trial believe. counsel for appellant requested the court to as follows: jury “That the mere of the defendant presence place time he was him killing (if would not present) justify you finding guilty of the offense unless the has satisfied charged, your State minds by evidence, competent beyond doubt, he, reasonable defendant, knowing the unlawful intent of the commit party ting act, aided him by acts, or him by words or acts encouraged to commit such offense. And it would devolve the State to upon prove - such acts competent beyond a doubt, reasonable before you can convict defendant upon such evidence.” I This charge, think, under the facts of this case should have been given. That the mere of' presence the defendant at the time and place commission of an will offense justify the jury such finding defendant guilty of the offense as a question principal, unless the evidence shows beyond a reasonable defendant, doubt such the unlawful knowing intention of the party actually committing act, him by aided acts or him encouraged by words or acts to commit offense, such is not only elementary and reasonable and sufficient itself, within is abundantly established by the author following State, ities: Schulee 35 Rep., v. S. W. 375; State, Leslie v. 42 57 65, Texas Crim. S. W. Rep., 659; Rep., Red v. State, 39 Texas 667, 1003; Crim. 47 W. Rep., S. Rep., Mitchell v. State, 36 Texas 278, 36 456; Crim. S. W. Rep., Rep., Franklin v. State, 76 S. W. 473; State, Parks 79 W. 537; v. S. Rep., Rep., State, Faulkner v. 311, 43 Crim. 65 Texas S. W. Rep., Rep., 1093; Chapman State, v. 65 328, 43 Texas Crim. W. 1098; S. Rep., Rep., Renner v. 1102. Rep., S. W. As stated in the brief memorandum filed me at the time the down, was handed it original opinion not certain but there for are other errors which case should be reversed, but this opin- I so forbear to already long ion discuss the other questions. say I do not need to personality the appellant in this of a hair’s has not to the extent breadth affected or influenced me, is no more to nor I him, decision. He my than Hecuba I am concerned alone players. to Hamlet’s in the law and its is the administration. pride glory our proper law, it be, us will been, hope and let ever ever has that all men are equal and one Lord One law over all. the law. I before do not believe been tried and has convicted accordance with law Texas Criminal set up to enter dissent and to my feel constrained and therefore law as I have learned well settled principles ancient and builders of our profession. from master them Charley & Bud Walser McAllister State. May

No. Decided 1909. 4180. Taking—Charge —Theft—Separate of Court—Misdemeanor. 1. upon for theft the evidence showed defendants stole two Where trial time, practically the same place the same was one bales of cotton from separate question offenses and the to whether offense no necessary; having however the court submitted such were misdemeanors was complain. the defendants could not favorable to the defendants Offenses—Charge Court. 2.—Same—Other thefts, pur- for the theft was evidence of other trial for there Where witnesses, and the court pose credibility of defendants affecting thereto, no error. limited said there —Same—Argument of Counsel. 3. light of State’s counsel in argument trial for theft Where reversal, in- necessarily ground the record was not jury, from there was no requested same withdrawing struction error. Exceptions. 4. of —Same—Bill except- was no bill appeal from of theft Where an a conviction considered. same could not be alleged matters as error the ions reserved to the before below Tried Montague. from the District Court Appeal B. Potter. the Hon. Clem $50; the value of penalty, a conviction of theft over from Appeal years penitentiary. five confinement states the case. March, separate offenses: S. for On question Geo. appellant. State, 29 Texas 183; 31 Texas Harris v. State, Rep., Crim. Cody v. 101; State, Barnes Crim. Rep., Crim. v. Texas App., State, 11 769. On 584; Texas, v. question Ct. White ‍​​​​​​‌‌‌‌​​​‌‌​‌​​‌​​‌‌​​​​​​​​​‌‌​‌​​‌‌​​​​‌‌​‍Rep., Texas 416; State, 8 Texas Crim. App., Hatch v. of counsel: argument 501; State, Crim. State, Sterling Texas App., Crawford v. 559. 30 Texas Crim. 249; App., Fuller v. App., 15 Texas Crim. McCord, for Attorney-General, the State. F. J. Assistant Judge. tried without RAMSEY, were The appellants together were, on County, District Court of Montague objection, found theft the value of 3, 1909, over February guilty property assessed confinement $50, punishment penitentiary and their bales two years. They charged stealing five period Bruce, J. from his cotton, one K. the property possession

Case Details

Case Name: Cabrera v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 3, 1909

Citation: 118 S.W. 1054

Docket Number: No. 4504.

Court Abbreviation: Tex. Crim. App.