Lead Opinion
This is the second appeal of this case, the opinion in the
In thе latter part of December, 1934, the decomposed body of. a man was found stranded in the Rio Grande River, with a cover for a Model T. Ford transmission case tied to the body by means of a rope. This man’s name was not known, but the body evidenced a death by violence, as shown by bruises and fractures of the skull, as well as numerous wounds on the body. There were certain tattoo marks over the body which, together with his height, weight and other characteristics, finally made up the allegations in the indictment relative to his identification, which was never made more definite. Appellant was not apprehended for about two years thereafter, it appearing from the record that he had changed his residence from this State to Mexico, and was undoubtedly a fugitive.
Upon the trial of this case it was shown that this deceased person and a woman, presumptively his wife, were temporarily present in a house belonging to a woman named Teresa Chapa, and were last seen alive by this Chapa woman, when one Placido Handy came to her home and took this man and Woman away with him in a car. These unknown persons seemed to be desirous of crossing out into Mexico, and, as shown by the testimony, Placido Handy, together with five others of Mexican extraction, one of whom was appellant, had previously entered into a conspiracy for the purpose of robbing and killing this man and woman, and disposing of their bodies. The conspiracy was carried out, if the testimony is. to be believed, in a most brutal manner. The woman was raped nine times, despite her pleas to be killed rather than to be thus treated. The man was beaten, shot, cut and stabbed; the woman, after she had satisfied the lust of these conspirators, was killed by them by beating, shooting and cutting her, and both bodies, weighted with pieces of an old automobile engine, were thrown into the Rio Grande River. Some six weeks thereafter the man’s body was found lodged in the river with its weight still attached, but so far as this record shows the river still keeps its secret as to where the woman’s unsepulchred body lies.
The record is voluminous and contains many bills of exceрtion that evidence great diligence and labor on the part of appellant’s attorneys in their presentation of this case in both the trial court and this court. The questions presented can be finally relegated, however, to practically a few propositions, which we will proceed to discuss.
The first proposition relates to a change of venue, which
It seems in this case that eighty-nine prospective jurors were intеrrogated, thirty-one of whom were excused because of having formed an opinion; the State used eleven of its peremptory challenges, and the appellant exhausted all of his challenges and was by the court allowed two extra challenges, which were exercised. It seems from the record that no talesmen were required, the jury being finally selected from the original venire. We see no good reason for further going into the matters complained of in this bill, and, in the interest of brevity, we refer the interested reader to what we said, relative to the motion for a change of venue, in the companion case of Handy v. State, No. 20298, (139 Texas Crim. Rep., page 3) for our views in this matter, and on the strength of that case as authority we overrule this bill of exceptions No. 1.
Bill of exceptions No. 2 presents the following question for our review: The court in its charge to the jury properly embodied therein a fair and legal charge relative to a confession purportedly made by appellant wherein he implicated himsеlf in this homicide, and which to a large degree was corroborative of the testimony given by one Jose Rodriguez, a self-confessed accomplice, who testified fully relative to these gruesome details. There was an objection leveled by appellant’s attorneys at such charge, and in place thereof appellant requested the giving of the following charge: “You are instructed as'a part of the law of this case, that there has been admitted in evidence a written statement made by the defendant while under arrest and in the custody of officers. In this connection you are instructed that unless you find and believe from the evidence, beyond a reasonable doubt, that the written statement was made by the defendant of his own free will and accord, without any force, threats or coercion on the part of anyone, and not as a result of any fear of bodily harm, and unless you further find and believe from the
The basic difference between such paragraphs in the court’s charge being the fact that the court charged the jury that unless they believed that such confession was freely and voluntarily made, under no persuasion nor promises, and after a proper warning, then they should disregard same, and went no further therein. However appellant’s requested charge went further, and, had same been given, it would have directed the jury, in the event that they found such confession to have been improperly made by appellant, that they should acquit him, and say by their verdict not guilty. This element of an acquittal was based upon the proposition, as alleged by appellant’s attorneys, that there was no corroborative testimony of any kind or character in this case as to the self-сonfessed accomplice’s statement except the confession of appellant, and if the same was not considered by the jury under the court’s instruction relative thereto, then appellant was entitled to an acquittal, because there was no corroboration of the accomplice’s testimony.
We confess this proposition has caused us some concern. Our attention has been called to the case of Ball v. State,
We are further impressed with the thought that the court should not have singled out this one special thing and framed his charge thereon to the effect that a failure to consider one portion of the testimony should result in a verdict of acquittal upon the jury’s part. Such an instruction, we think, would have been upon the weight of the testimony. Suppose the testimony relied upon as a corroboration of the accomplice had been given by the witness A. B. Would the court have been justified in instructing the jury that unless they believed the witness A. B., they should acquit the appellant. Carrying the illustration still further, suppose corroborating testimony was given by both A. B. and C. D. Would not the court be called upon to instruct the jury that they must acquit the defendant unless they believed the testimony of both A. B. and C. D.? The illustration could be carried on ad infinitum, or at least until the сourt would find itself in the position of classifying all the testimony, and under the duty of instructing the jury.on not only the weight of the testimony, but also its effect, — in regard to each proposition presented.
We have recently been confronted with a similar situation relative to the doctrine of circumstantial evidence, under the proposition that no case falls under the doctrine of circumstantial evidence where there is any direct evidence relative to the accused’s guilt. We have held in late cases that where a confession of the accused is submitted to the jury relative to whether or not same was voluntarily made, with the instruction to use the same only in the event they find same to have been made free from coercion, etc., that it was not necessary to further instruct the jury on the law of circumstantial evidence in the event that the jury should decide that such confession was improperly obtained.
We quote from Wilson v. State, supra: “The trial cotirt correctly refused appellant’s special charge No. 2, wherein he sought to have the jury told that they should not consider the confession unless they believed its statements to be true, and that, if they found same to be untrue, the case would be one of circumstantial evidence. There was no warrant for said charge either in fact or law, and for this .court to so hold would engraft on our practice the singling out in any case of the direct testimony on which the State relied, and telling the jury in the charge that if they did not believe this direct testimony to be true, then the case would be one of circumstantial evidence. The unsoundness of such doctrine needs no discussion.”
We quote from the case of Langhorn v. State,
In the present case the court instructed the jury that if there be no corroboration of the accomplice’s testimony, then they should acquit the defendant. The court also instructed the jury that they could not convict the defendant on his confession, even though they believed the same to have been voluntarily given, and to be free from coercion, etc., unless there was also separate and independent evidence, outside of the confession, corroborating samein some material matter tending to connect the defendant with the killing of the deceased. The latter portion of such charge was more favorable to the accused than he was entitled to. See Simmons v. State,
We quote from the opinion on motion for rehearing in the Johnson case,
It occurs to us that the same reasoning that sustains the proposition that where the State relies solely upon a confession in order to take the case out of the domain of one of circumstantial evidence, and the voluntariness of such confession is submitted to the jury for their decision, that nevertheless it is not the duty of the trial court to charge the jury in the event they disregard the confession, that such a case then becomes one of circumstantial evidence, — if such a charge is an improper one under such facts, our reasoning ought to necessarily follow that if a confession is relied upon to take a case out of the realm of a conviction upon the uncorroborated testimony of an accomplice, that it should not be proper nor necessary to anticipate the contingency of the jury disregarding such confession, and instructing them that if they so disregard such testimony, then that there was no corroboration of such accomplice, and they should acquit the defendant. If such an instruction be given, why should not the defendant also be entitled to a charge of like import wherein the sole eye witness, who had been vigorously impeached, why should not the court tell the jury that if you do not believe the testimony of this eye witness, then you should acquit the defendant on account of the only further testimony being that of an admitted accomplice. We think the analogy with the above quoted cases and the instant proposition with which we are confronted is close enough to say that they should be decisive of this question, and that the court should not have singled out this one question and instructed the jury that in the event they disregarded the confession of appellant, that they should acquit him. They were instructed that before they could convict appellant they shоuld not only believe the testimony of the accomplice, and that same showed the guilt of the appellant, and that there was further and other testimony corroborative of the accomplice’s testimony, tending to connect him with the commission of the offense, and
As to the proposition laid down herein, that it is not the duty of the court to single out certain portions of the facts and charge thereon in connection with the probable finding of the jury on other facts submitted to them, we quote from Hines v. State,
That this court is сorrect that where a confession is introduced and presented to the jury for determination as to its voluntariness, and it is the only direct testimony presented, nevertheless the case rests not on circumstantial evidence, and should not be thus charged, is held in 24 Texas Jurisprudence, p. 590, as follows: “* * * nor is a charge as to circumstantial evidence necessary where the defendant’s participation in the crime is shown by the testimony of an accomplice, or by an unequivocal admission or confession of the accused. To relieve the court of the necessity of giving a charge of this character the confession or admission should unequivocally admit the commission of the act charged, but it need not do so in the exact language of the statute defining the crime. A claim that inculpatory statements were made through fear does not alter the rule that admissions or confessions of guilt obviate the necessity of a charge on circumstantial evidence.”
While we have endeavored to reason from analogy in the cases above quoted, we now resort to the instant case, and bill of exceptions No. 2. In order to render proper the requested charge, it is necessary that there be no corroborative testimony at all as to any material fact testified to by the accomplice. To the application of this proposition we are not in full accord so far as these facts are concerned. We find from the testimony that in a short time after the disappearance of the deceased person and his wife, that the appellant disposed of his automobile and fled to Mexico, where he remained for a period of practically two years, as testified to by the immigration officers, who said they were looking for him, and when he did appear in Texas he himself was armed with a fully loaded pistol, and was in company with another who was similarly armed. That this testimony was admissible is justified, we think, by the following quotation from 18 Tex. Jur., p. 41, as follows: “The flight or attempted flight of a person after the commission of a crime, while not of itself sufficient to raise a presumption of guilt, is a circumstance which is to be considered by the jury in connection with all the other facts and circumstances in the case as tending in some degree to prove a consciousness of guilt. * * *
“In proving the flight of the accused it is competent to show that soon after the crime he left the county or the state, and that a letter written by him showed that he was a fugitive. It
•Appellant’s bill of exceptions No. 3 relates to the testimony of Charlie Wallis, a senior patrol inspector, wherein he testified that for approximately two years, while in the discharge of his duties, he was looking for the appellant, endeavoring to catch him on the Texas side of the river, and that he did not arrest any of the co-conspirators during such time; that witness and other officers were laying for appellant in order to catch him on the north side of the Rio Grande, but did not find him for two years. That the flight of the accused was permissible to be proven we have just shown by the above quotation from 18 Texas Jurisprudence, p. 41. The portion of the above testimony relative to the failure to immediately arrest the other co-conspirators seems to have been brought out by appellant’s attorneys on cross-examination, according to the trial court’s qualification to such bill. This bill does not impress us as evidencing any error.
Bill No. 4 complains of the court allowing the officers who finally arrested appellant to testify that appellant, as well as his companion at such time, were armed with fully loaded pistols, which were taken off their person at such time. We again refer to 18 Tex. Jur., p. 43, wherein it is said: “It is also relevant to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken even though this may amount to the commission of another сrime.” See Williams v. State, 90 Texas Crim. 619,
The authorities above cited hold that when the flight of the accused has been shown, it is relevant to show his pursuit and capture, including his resistance when overtaken, although such may amount to the commission of another crime. It should surely follow that his preparation for such a resistance in thus arming himself, and surrounding himself with armed companions, would be a matter that was relevant and material to the issue of guilt and a consciousness thereof.
Bill of exceptions No. 5 relates to the fact that the trial court allowed proof, over appellant’s objection, of the fact that at the time of appellant’s apprehension by the officers he was accompanied by one Gil Casares, who was also engaged in an illegal crossing into Texas at nighttime, and was armed with a fully loaded pistol. What we have said previously in regard to bill No. 4 applies to this bill also. We are of the opinion that the circumstances surrounding appellant’s arrest after his flight and seclusion in Mexico for about two years are material and relevant to the question of his guilt herein.
Bill of exceptions No. 6 seems to be based on an objection to the cross-examination of a witness relative to the fact that he had not testified theretofore in this case. We do not see any merit in the objections leveled at such questions, and we overrule this exception, and to the same effect is bill No. 7, and our ruling is the same.
Bill of exceptions No. 8 complains of the fact that while appellant was on the stand he was asked if he crossed the bridge (over the river) or came slinking across the river at nighttime
Our final conclusion herein is that the case of Ball v. State,
We think this case was properly and legally tried, and that the record presents no error.
The judgment is therefore affirmed.
Rehearing
The first point urged in appellant’s motion for rehearing is that bill of exception number four reflects error in permitting proof to be made by the officers who arrested appellant on the night of October 11, 1936, that appellant was at the time of his arrest armed with a double-action 45 Colt’s pistol fully loaded, the objection to such evidence being that it tended to show appellant was guilty of another crime other than the one for which hе was on trial, and that the pistol which appellant had was not shown to be the instrument with which the offense being tried was committed.
Appellant seems to view the evidence complained of as the proof of an independent crime, apparently overlooking what to us appears to be the necessarily related facts that appellant soon after the murder for which he was on trial fled to Mexico, and there remained as a continuous fugitive up to the date of his apprehension. The facts last mentioned, we think, differentiate the present case from those cited by appellant in support of his contention. In the Lawrence case,
Appended to bill of exception number four is an explanation by the trial court setting out the facts before him upon which he made the ruling complained of in said bill, and stating his reasons for admitting the testimony sought by appellant to be excluded. We quote from such statement the following:
“Upon the trial of this case one Charlie Wallis, a Senior Patrol Inspector of the United States Immigration Service, was called
“The witness Wallis further testified that he had known the defendant for several years prior to the murder and that the defendant had resided all of that time near the scene of the murder, and that the defendant was an American citizen having been born in the United States, which fact was later admitted by the defendant when he took the witness stand, and that a very few days after the body of the deceased was found the defendant immediately crossed the river and went to Mexico, where he remained practically all the time until the night of his arrest. Other testimony disclosed that shortly after the body of the deceased was found, the defendant transferred his automobile to one Placido Handy, a "co-defendant in this case, also under indictment, and said defendant thereupon went to Mexico, where he remained until he was arrested.
“The witness Wallis further testified that he and other officers attempted to arrest the defendant in connection with this case at about the time he went to Mexico, or shortly thereafter-wards, and that they often laid in wait for said defndant down near the banks of the Rio Grande River near the defendant’s residence and the scene of the crime, on information that he was crossing in the dead of the night to pay visits to relatives on the American side, but they were unable to apprehend and capture him until the night of his capture, as above stated.
“Testimony from Wallis and other officers, as well as from the defendant himself, who voluntarily took the stand in this case, disclosed that the defendant, in company with the above named Gil Casares, illegally crossed the Rio Grande River from a spot in Mexico directly in front of the home of one Felipe Hernán
' “As heretofore stated, the defendant voluntarily took the stand as a witness on his own behalf, placed thereon by his counsel, and readily admitted that he and his companion, Gil Casares, were making an illegal crossing in the dead of the night from the Mexican side of the river to a place on the American side of the river near his home, and that the said Gil Casares was armed with a loaded pistol, yet the defendant positively denied that he himself had a loaded pistol or a pistol of any kind, and he denied that the officers found a pistol upon his person when he was captured.
“It was the State’s theory of this case that shortly after the body of the deceased was discovered in the waters of the Rio Grande River near the scene of the crime, the defendant, although shown to have been an American citizen, born in the United States and living practically all of his life near the scene of the crime, on the American side of the river, fled into Mexico in order to escape arrest for this particular crime, and that the officers attempted to arrest him shortly afterwards but were unable to arrest him for a period of almost two years; until the night of his actual arrest and capture; that at the time of the defendant’s capture and arrest he was still attempting to evade and prevent arrest for this particular crime, and was returning to the American side, surreptitiously, to pay a hurried visit to his relatives, with an illegal crossing, of said river, and that the fact he and his companion, Gil Casares, who crossed the river with him, were armed with loaded pistols ready to be fired was a material fact and had a material bearing upon whether or not he, the said defendant, had fled and had escaped arrest for this particular crime shortly after the body of the deceased -was found, and whether or not he, the said defendant,
The matters stated in the foregoing explanation are borne out by the record.
The State may prove the flight of accused and the pertinent attendant circumstances, and may also show that accused resisted arrest or threatened to resist arrest. Branch’s Ann. Tex. P. C., Sec. 135; Mitchell v. State,
In Hunter v. State, 59 Tex. C. R. 439, accused was in jail charged with murder. He escaped from jail. The sheriff effected his re-arrest on the third day after his escape. The sheriff testified over accused’s objection that when accused was re-arrested: —«* * * that he had a 32-automatic pistol and a Colt’s and Winchester, that he had plenty of cartridges, including about a box and a half of 32’s and about seventy-five 44’s; that the automatic pistol was a weapon that shot eight times, and that to fire same all you had to do was to pull the trigger and it would not stop after it got started unless you threw it in a tub of water.” In passing upon the objection Judge Ramsey, writing for the court, said: “There was little or no occasion, we think,
As throwing some light on the question discussed we refer to Wallace v. State,
The second point urged by appellant in his motion for rehearing is that we erred in not holding that bill of exception number five presentеd error. The bill complains at the reception of evidence from officer Wallis that when appellant was arrested his companion, Gil Casares was armed with a pistol. We observe that at page 199 of the statement of facts appellant himself, while denying that he had a pistol at the time of his arrest, testified without objection that Casares had one, saying “because he (Casares) has been an officer there all of the time.” The bill in question may be disposed of on the general proposition so frequently announced that when evidence complained of goes into the record from another source without objection no error is presented. See 4 Tex. Jur. p. 586, Sec. 414; Hudson v. State,
The third point in appellant’s motion questions the action of the court in overruling a motion for change of venue. The record on that point is precisely the same as found in Cause No. 20,298, Handy v. State, reported in (
Appellant has filed a supplemental motion for rehearing urging that the confession of appellant was obtained in violation of the “due process” clause ofthe Constitution of the United States and comes within the rule announced by the Supreme Court of the United States in Chambers, et al v. The State of Florida, decided February 12, 1940, 60 Sup. Ct. Rep. 472.
Said supplemental motion might be stricken from the record because filed so late, but because of the death penalty having been assessed we prefer to deal with the question on its merits. This court is in harmony with the holding in the Chambers case (supra) as evidenced by the opinions of this court in Blackshear v. State,
The point now urged was not presented on original submission, but since the filing of the supplemental motion we have been at some pains to examine the entire record as it relates to appellant’s present insistence. It is suggested in the motion that the officers obtained three confessions from appellant and that it was not until the third one that its contents were satisfactory to the officers. We think the record fairly construed does not support such a conclusion. Only one confession was used and nothing was said about any other until it was developed by appellant himself on his direct examination. He testified that the first confession related to the killing by himself and some of his co-defendants in the present case of a man named “Conrado” at a point somewhere on the Rio Grande River. This confession was given sometime either Sunday night or Monday morning. If the officers had any information of the killing of “Conrado” up to the time appellant told them about it the record is silent. The conclusion might be drawn that appellant’s statements were not in accоrd with other information which the officers had — if they had any at said time about the killing they were investigating. On Monday appellant was taken to the river by some of the officers where he pointed out a place where “Conrado” was killed. Appellant was then taken back to the jail in Edinburg. Later he made a second statement about still another
Appellant tells a story about his claimed treatment by the officers which induced him to make the several confessions which, if true, would put to shame the cruelties of the Spanish Inquisition. He attributes most of the claimed punishment was inflicted upon him by one Ingram, a deputy sheriff. Appellant claimed that Ingram tightened up the hand-cuffs until it was painful, hit him on the head and shoulders with a chain attached to the cuffs; suspended his body with the hand-cuff links over the top of a door and with his toes barely touching the floor; hit him with a blackjack, cursed him, calling him a liar and a s— of a b — . Appellant asserted that Ingram practically put the words of the confession in appellant’s mouth and that he told what was in the confession because he was directed what to say and that he made and signed the statement “so they wouldn’t hit me any more.” Appellant claimed that Uncle Billy Brewster was prеsent when appellant was being subjected to the treatment described.
It is not amiss to here state that Jose Rodriguez, one of the participants in the killing of the man and woman and the violation of the woman against her entreaties, testified upon the trial detailing the horrible incidents of the murder of the man and woman, and ravishment of the latter by appellant and his confederates. The confession of appellant corroborates to the minutest detail the evidence given by Rodriguez. To our minds the confession itself refutes appellant’s claim that the statements in the confession were put in his mouth by Ingram or anyone else. The horrible details, it appears to us, could be related only by one present and participating in the crime. Ingram specifically denies all acts of cruelty or punishment and
“I recall when this defendant was arrested and I first saw him in the jail in Weslaco, when I went down there with Mr. George Ingram and we talked to this defendant down there, but no one went down with George and me, although Manuel Munoz was with us afterwards. When we first went there to the jail to talk to this defendant, I did most of the talking and I talked to him some there by myself, but neither I nor George nor any one else down there beat or abused or mistreated this defendant in any way, and George Ingram did not hit him with a black-jack or a billy club or hit him with chains in his face and neither did anybody else. After talking with this defendant down there, we came on up to Edinburg with him and talked to him here in Edinburg, and I, myself, did most of the talking to him, but neither George nor I, nor anybody else beat or abused or mistreated Chon Martinez in any way up here and I never saw anybody beat or abuse him, and if anybody is close to Chon it would have been me, and I would not have permitted anybody to have beaten him and if anybody has been with Chon it has been me, except when I have been sick, as, excеpt when I have been sick, I have been around him every day and I have never seen any blood on him at any time. I was in there practically all of the time that Chon made this statement to Mr. Hartley and Mr. Chapa, walking in and out, and I remember when he made the third statement about this particular case here, and he told that story to me before it was taken down in writing and then Chapa was called and it was taken down and signed, and I did not use any force of any kind to get that statement and no force was used at the time that he made the statement to Chapa or at any time, since this defendant has been arrested.”
In addition to Ingram and Brewster the State called as witnesses in rebuttal of appellant’s testimony as to the treatment he claimed to have received, Charlie Wallis, W. C. Greer, Tom L. Hartley, S. B. Bledsoe, C. D. Carnahan, Lee Pettit, Dick Gilliam, Elmer Vickers, J. M. Chapa, A. G. McHenry, Fred J. Meyer, R. T. Daniel and Ben Brooks, Jr. It will be remembered appellant claimed that during all the time he was giving the statements and during the time he was being questioned by the officers about the several stаtements made by him he was being
We doubt if in all the annals of crime in Texas or elsewhere there has been a more diabolical offense than the one reflected by the record before us. That very fact has impelled us to again examine the questions presented by appellant in his motion for rehearing, and to write at length thereon, being jealous that appellant be deprived of no rights to which he is entitled under the Constitution and laws of this state or the United States.
Believing that nothing is presented which calls for a disposition of the case different from that originally ordered, the motion for rehearing is overruled.
ORDER STAYING MANDATE.
" The Clerk of the Court of Criminal Appeals of Texas will stay the issuance of mandate in the above entitled and numbered cause until the appellant has opportunity to present an application for writ of certiorari to the Supreme Court of the United States, and in the event such writ should be granted, to further stay the issuance of mandate until the Supreme Court of the United States shall have determined the case.
This the 21st day of June, 1940.
ORDER.
The judgment of conviction in this cause became final on the 22d day of May, 1940, when appellant’s motion for rehearing was overruled. Thereafter on the 21st day of June, 1940, upon application of appellant’s attorneys the clerk was directed to stay the issuance of the mandate to give appellant opportunity to take such steps as he deemed necessary to have the case reviewed by the Supreme Court of the United States.
It is now made known to the court upon motion of the State that since such stay order no effective effort has been made
In reply' to the State’s motion attorney for appellant suggests that the reason efforts were suspended to have the judgment of this court reviewed by the Supreme Court of the United States was because of the refusal of appellant to sign the necessary papers. Counsel suggests that in his opinion the reason appellant so refused was because he had become insane since the trial. If the issue of present insanity should be raised this court has no jurisdiction to determine the question, but it must be determined by the trial court after its jurisdiction has been restored, which will occur upon receipt of the mandate of this court. Therefore,' a further suspension of the issuance of the mandate is not deemed proper. -
The court now directs that the order heretofore made on the 21st day of June, 1940, staying issuance of the mandate beset aside, and the clerk of this court is ordered to issue mandate instanter.