*1 208 insuffi- be set aside because conviction would have to
ciency of the indictment. granted corpus rela- application for writ of habeas life under the from further confinement tor is ordered released pronounced the district No. 1268 sentence said Cause Texas, 4, County, 1954. dated October of Carson Lopez v. State Ernesto Martinez 31,371. June No. Rehearing
Moion for Overruled November Judge, DAVIDSON, dissented. Dallas, Benavides, Thomаs, C. Howard, Robert Bill G.
Tom appellant. Attorney, Allen, K. H. James Henry Wade, District Criminal Chamberlain, Jr., Phil Ellis, Fillmore, F. Jerome Ben Dustin Doug- Dallas, Attorney, and Leon Burleson, Assistants District Austin, Attorney, for the state. las, State’s DICE, Judge. *2 murder; punishment, death.
The offense the Irene deceased, Jeanette The state’s that the evidence shows Mangan, years at 3257 age, parents her who was of lived De- of Kingbridge city the in of On afternoon Street the Dallas. p.m. 4:30 31, 1956, around cember the left her home nearby grocery go a her little old 14-month brother Shortly appellant up the they picked store. thereafter were Betty of home and Simon Snyder and four drove to the the got appellant’s in the deceased Thereupon, automobile. Betty out car the and went into the house with her brother. her company then came out and to the car in with the deceased Betty brother and appellant. tаlked to the had After declined go appellant, leaving with the de- she to the house the returned standing ceased in holding car her little brother her arms. p.m. appellant Around 5 and Joe Pena observed the Rodriguez sitting parked in in automobile which was Rodriguez’s Rodriguez got car, front of home. in out of the went house, rags. the and returned with bucket of water and some proceeded then to clean some blood from the back seat and floor board the While automobile. seat, back the pistol by putting loaded a .32 calibre they two car, clip. bullets After had cleaned the blood from the appellant, Rodriguez, and Pena went for some beer and they then rode riding. Rodriguez around car. While were appellant, go get said baby “Let’s on Hill and Goat take porch,” people’s to some white replied which go he did not want to he was scared. Later in the con- versation, appellant told Pena that girl had killed a they girl up baby left the on Goat Hill with a who was half-way with her. Later drove up the hill where Rodriguez got out of the car and and Pena then drove house Joe Medina some away. block and a half forty-five approximately minutes, Rodriguez came to the Medina said, “it girl home and was terrible” alive. still Thereupon, the three left Pena was tаken to his house where happened he told his sister what had police. who then called the when shows that the officers went on the hill body lying found the dead of the deceased on its back against body bloody an When embankment. was found it was except for in the nude deceased’s socks and her blouse pulled Approximately brassiere which around were her neck. body spots 50 feet from the two blood approximately were found torn apart spots the deceased’s 20 feet underclothing the two and between lying ground. pairA of blue on the shoes were jeans nearest blood lying were on a bush 50 feet some spots and spot. drag were the blood No marks found between investigation, ground. In lying where the deceased was baby but covered with blood brother parently the de- injured, feet found some body. ceased’s med- qualifications Montgomery, Jr., P. Dr. O. B. whose legal pathologist shown,
ical that he examined testified body wound of the deceased and he found one body at entered the chin and had its exit below the which, back of the opinion, the head was the cause death that both deceased. The doctor testified that also found *3 jaws on caused the left side were broken which could have been by a blow that his Montgomery with a fist. further testified Dr. injuries vagina exаmination revealed to and tears both pene- anus of trated that in his opinion had been deceased and that in his both organ. Montgomery a male sex further testified Dr. vagina opinion her deceased was alive when both opinion penetrated. anus were He further stated that his instantly injury that her from her deceased did die sur- maximum minimum survival time was 3 or 4 hours and further vival time was between 20 and 30 minutes. The doctor body powder testified that he found no burns on the deceased’s range compatible wound was who lying person made while the deceased down and the was standing fired the shot was over her. arrest, following ap-
The further his shows pellant intro- was made a written statement to the officers which any objection from duced in evidence the state without pellant. part as follows:
In his written statement stated * * * I years December was with “I old.” On am 19 driving my boy driving I car. We wеre a named Simon. was * * * girl I a car- drinking About 4:30 saw some.” around and * * * Betty.” baby. stopped I her about rying and asked a small get in Betty I her to at home. asked girl guessed said The she go but Betty’s didn’t want us. She go to house with the car and I up five to make going. It minutes took her about her into talked Betty Betty’s wasn’t at home. house and mind. went to her We Betty couldn’t find went for a while and her. We looked for We Betty gone back one her friend’s house and us told Betty Bеtty’s I who home. went back to talked We house. go Betty with us be- there with her told me she counln’t friend. go girl date had to a The cause she had a and she take bath. picked up Singleton me her where we we on asked to take back nearly picked got picked up. we back to where her her we When up, up jumped over in the told me to Simon back seat and drive hill, girl said, you taking I on the me And ‘Where are to?’ said, said, ‘Up ’Oh, on mе the hill.’ and she no.’ And told Simon got go up up on and I hill drive the hill. drove on the away car I out and walked from the out and car. stood away gun car for few minutes. I one heard up opened girl I walked to the car and the door and saw girl blood all over her face. The looked like shot in the she was running nose, said, out of her I face and blood was you ‘What for,’ said, get do that And Simon ‘She didn’t want out of holding right car.’ his Simon still his hand with lap. hand in his down Simоn told me to take her out the car I pulled baby of the car. her out Simon took the out of the car and ground. standing laid it down her on the He beside within a few feet her I and don’t know whether the bullet hit her or not. got in
We the car then and left.” testify witness, did not but called his father as a who in support testified application sus- pended sentence. The case was submitted to the princi- under the law of *4 pals by 65, 66, as 69, defined Articles 67 and V.A.C.C.P. un- and сharge jury der the the appellant authorized convict the upon finding beyond its from the evidence a reasonable doubt acting he “either Rodriguez, Jr., that principal” alone or with Simon as a alleged the killed deceased as in the indictment. applying In submitting the law to the facts and the of issue jury appellant’s they jury the court instructed if the that beyond believed from the evidence a reasonable that doubt acting together principals appellant while as the and original design had an common intention and between themselves sodomy, to commit or assault with intent rape, or commit anyone deceased, or committing or more of such offenses the and in endeavoring they or to commit such offenses or either aforethought by of them with malice the killed shooting killing, and at the time of appellant her present, a such the аcting together in furtherance of the design, though purpose actually or or bodily common and present keeping prevent interruption so as the of watch engaged original carrying purpose those in and out the common killing and that the an as of the deceased was such act by might contemplated par- been or have have should been the original pur- would the ties result the execution of common pose design, they appellant, and then would the etc. convict jury they The court further instructed if the believed thereof, evidence, or a reasonable doubt killing pellant participate the the did not assist or actual of killing deceased, but that killed the and the any way de- was not connected with their common and sign, any, rape, rape, with intent to or commit the or assault sodomy upon killing the act of her the was without knowledge appellant independent consent an or such was not an as impulse act reasonably contemplated might have been have been should parties from their endeavor to execute the would result design, acquit then original common intent and say by guilty.” their verdict “not jury on the law circumstan- also instructed The court tial evidence. court, charge given by on charge, was a correct as chаrge given in and followed the
principals under statutes Rep. State, 2d 165 v. 154 Tex. Cr. S.W. White copied pages Erisman’s Manual of in Sec. 654 at 727-732 found Appellant complains Criminal Cases. Errors Texas Reversible jury charge failure to instruct for court’s separate accomplices These and dis- are law accessories. principal crime. from that of to a tinct offenses Arts. only charge the court’s could Under principal V.A.P.C. commission of offense and as be convicted accomplice accessory. been convicted an or have could jury failing the court did not err. to so instruct failing complains of court’s Appellant also exculpatory law of with reference to the state- instruct such an instruction ments. It is first contended given which the his written confession have been should *5 exculpatory in was showed introduced evidence state when the murder com- present at the scene he was not in his confession he walked appellant stated mitted. While hearing away car returned after present he not when the de- show that not did statement
213 of a present ceased at the commission was killed. For one to be princi- by of the law another, crime under as that term is used in with or pals, necessary contact parties it is not in for the to be vicinity is оther, immediate presence the immediate each 2d 996 567, State, 121 sufficient. Hill v. R. S.W. 135 Cr. Tex. It is 359, 2d 406. State, 194 Garza v. 149 Tex. R. S.W. Cr. given next have been contended that such an instruction should surprise he re- when because the confession showed you do that turned to the for?” did car and asked “What law and exculpatory Such statement as a matter R. State, Tex. not call for 160 Cr. the instruction. Perez v. 376, 315, State, R. 271 Tex. Cr. S.W. 2d 281 and Mendez v. 168 exculpatory 327 state- remaining purported S.W. 2d 454. The by ment state’s elicited on cross examination witness, Pena, required. Tate v. and a thereon was State, 616, 139 Tex. Cr. R. 141 2d 351. S.W.
Appellant refusing permit insists that the court erred in him to co-princi- offer in evidence of his the written confession pal, Rodriguez, proof and to time of trial Rod- make that at the riguez, was Appellant under indictment for of the deceased. relies the rule followed in circumstantial evidence cases which parties makes admissible the declarations of third admit- ting their of the the accused is on trial. offense Appellant co-principal overlooks the fact that his been tried and convicted for the deceased and sen- the murder of tenced visions pellant. imprisonment incompetent pro- to life under and was 711, testify ap- of Art. V.A.C.C.P. to as a witness for the State, 575,
Sommers v. R. 2d 106. Tex. Cr. S.W. Rodriguez being incompetent testify his writttеn statement appellant. not be admissible in Alaniz v. behalf State, 374, 153 Tex. Cr. R. are 2d 653. We unable S.W. agree proof that such under Art. was admissible any given part V.A.C.C.P. as act or conversation by in witness, by evidence Pena, upon examination state’s testify While counsel. Pena did relative to what said evening he found and did when he hill on the in returned to the question riguez and such acts and were detailed Rod- observations any manner, not, in his confession examine the state did witness, Rodriguez. Pena, relative to the confession of
Appellant
insists that
error was committed
reversible
argument
opening
state’s counsel
when
stat-
you
happened
top
ed “Now this defendant has not told
all
* * *
hill,
of that
we know that
.”
insists that such
testify
direct reference to
statement was a
failure
The record
violation
Art.
V.A.C.C.P.
reflects
*6
pellant’s objection
argument
by
the court
sustained
jury
and the
appel-
instructed not
to consider the same but
lant’s motion for mistrial was
The record further
overruled.
argument
by
shows that
complained
of was
state’s
made
counsel while
reviewing
appellant’s
the contents of
writ-
ten statement
jury
which
was in evidence before the
objection being made
jury
counsel stated to the court and
that he
was referring
appellant’s
to
statement
“which is
evidence in
this case.”
explanatiоn
by
The
given
clearly
state’s counsel
shows
referring
he was
appellant’s
written statement which
was in
testify.
evidence
appellant’s
and not to the
failure to
No
reversible error is
State,
shown. See Howard
R.
v.
Tex. Cr.
205,
The evidence helpless young girl shows the brutal of a and is verdict jury’s sufficient support under the court’s finding appellant guilty.
The written confession in which he detailed how he and companion, Rodriguez, up took on the hill, tоgether with circumstances, other facts and sufficient original show an common them to between sodomy or commit if not to murder her. Appellant’s written confession in that after which he stated “ * * * away drove on got the hill out of the car and walked from away the car. I stood out the car for few min- utes” was jury concluding appel- sufficient to warrant keeping lant was companion, Rodriguez, watch while his com- body. mitted and fired fatal shot the deceased’s into Montgomery range of Dr. having wound on the while compatible deceased was with it been made lying person the deceased down and the who fired standing her, together over written confes- circumstances, sion and the other facts and was sufficient warrant the conclusion that the deceased was shot after taken out of the car and after had returned to the car acting Rоdriguez. and was jury, were fact properly
Such issues for the which were sub- charge. mitted to them in the court’s conclusion, we exception observe that bill punish- shown that had been tried and assessed imprisonment. information, course, ment of life This was recog- This appellant". tried available to who made clemency. We are bound power inequity no nizes the but has an- law, no error for and have found the facts and the government will other trial should Another branch be ordered. bring done, anything, about what determine shall be *7 punishment. justice equal in the matter of more judgment is The affirmed.
Opinion approved by the Court.
DAVIDSON, (dissenting). Judge, charged commit- persons a case were Here is where two ting the same murder. actually murder, act-
The one who the one who comitted the ually shot, placed trial. He convicted fired the fatal is first is twenty-two-year-old goes penitentiary. and appеllant other, to the this actively participate in or who the did state admits says guilty per- commit murder the the but he is aided murder, goes son who committed the death in the electric to his Yes, actually goes chair. the man to the who commits the murder penitentiary, helped while man him dies in the electric the who chair! justice equal
It is difficult for such is me to understand that right distinguished wrong, under law or that it as be- as from be, tween men. If such it the law so аnd a is because decrees jury view, that has so the fact remains decided. Whatever be the apparent inequity good such an furnishes a and sufficient reason why a conviction should under such circumstances be examined determining and inquired into with the whether impartial defendant received and trial under the law and a fair against only penalty whether the death him after was assessed and a result of such trial. theory
This case was tried that Rod- and riguez understanding agreement entered into a common and rape sodomy upon and commit that the crime deceased and during Rodriguez engaged occurred while carry carrying endeavoring agreement out or out that common design. theory applying law, that the trial authorized only jury (1) to convict believed pellant (2) agreement; entered into such killed the shooting pistol her with a while committing or endeavoring rape (3) sodomy; commit the shooting the act of the deceased in the such that head was appellant might contemplated have or should have would result (4) sodomy; commission shooting of the deceased an act that Rod- was such both riguez reasonably contemplated should have result from part endeavor on the to execute common sodomy. Under such appellant, instruction thе convicted the general under a finding guilt. of jury’s The record does not reflect which state finding of facts predicated. exceptions Various charge, were leveled at court’s chief among which charge. was that the evidence authorize *8 There showing any agreement, is an utter lack of evidence conspiracy, design rape sodomy or upon to and commit an act of the deceased. Therе were no witnesses testified. There who so were no witnesses to the transaction. any If there be agreement, conspiracy, or evidence of such design, voluntary must be found in But confession. wholly any
that confession is devoid of statement of facts which Moreover, would authorize such conclusion. in the many words, confession had so stated so there is no corrobora- ting testimony thereof. always It must be remembered that it has been the rule that cannot, alone, confession corpus of the accused establish the delicti or the of the accused or that an accused can be con- victed confession, alone. is, here, testimony There no of or other than the con- outside any agreement,
fession of the conspiracy, such corroborative design having or been entered into. wholly It follows that the evidence fails to authorize the con- Rodriguez clusion that agreement, entered into an conspiracy, design Rodriguez or would commit an act of sodomy say rape upon agreement the deceased. To indulge shown is supposition spec- rankest sort of ulation. stop insufficiency there. not But the does of the evidence killing testimony is, equally, any
There an absence of committing or en- occurred while upon, deavoring sodomy agreed or that rape as commit the design parties should have agreement, conspiracy, and contemplated to execute attempting in the execution of or sodomy shoot- kill the deceased would ing reasonably result killing her with a that such would or agreement, conspiracy, design. from such or evidence, contrary, undisputed To the which the state placed confession, in evidence whеn it introduced she shows that would killed the deceased because get by any disputed out of the car. That is not other evidence in this case. killing, then, occur while was commit-
ting attempting sodomy or to commit or as the state insists. they necessarily
When the court affirms this case hold as matter rape ing conspiracy, of law agreement, that a or common sodomy upon and commit a female would result in the kill- reasonаbly victim or that such be calculated conclusion, so law, utterly result. Such either of fact or of is so illogical contrary wholly experience to human be with- out foundation. Yet so holds when affirm this con- viction. connection, sight this the fact not be must lost of that the is, firing deceased —that of the shot that killed *9 prior during
her —must have occurred or commisssion rape sodomy, shooting rape for after occurred sodomy and spiraсy, agreement, prior been consummated then the of the con- design accomplished had been and ended brought and could not have entered into or killing. about the affirming this case the court establishes aas rule of law conspiracy, agreement,
that a mit an act of or common and com- sodomy contempla- embodies and carries with tion agreement notice in the execution and commission of that during be victim will shot in the head before or sodomy. the commission of the and act of agree holding I could never proposition or of law. 218 accessory appellant guilty as an
The evidence does show does authorize murder of the Such an offense deceased. penalty punishment. infliction of the death accessory to the murder asked that his as an against defense deceased be submitted as аn affirmative given. of murder. have been crime That should record, pay penalty. Under this should not death I dissent. Rehearing for
On Motion Judge. BELCHER, carefully We connections have considered
light of the record remain the cause was convinced properly original decided submission. rehearing motion for is overruled.
Opinion approved the Court. Morrison v. State
Charles Walter 32,018. 1, No. June Rehearing Motion for Overruled October Rehearing Motion Overruled November Second