No. 315. | Tex. Crim. App. | Mar 4, 1894
Lead Opinion
The appellant was convicted of the murder of Elias Mussett, and sentenced to imprisonment in the penitentiary for life, from which judgment he appeals to this court. The facts are few, but significant. Mussett, the marshal of Corpus Christi, was shot by appellant, who was one of his policemen. It seems that there was ill feeling between the parties, existing perhaps for years. On the night of the homicide the parties met near a dance, and the marshal taunted the appellant with being run out by some revellers the night before. He denied it, and stated that the marshal's informant was a liar. This was testified to by the witness Mitchell. Late in the night they again met and had loud words, as testified to by the defendant's witness Vela. At 1 o'clock that night deceased was on his way home, when he was stopped by Yndalacio Rosales, a saloon keeper, who talked a minute or two, when appellant rode up to them, and in half a minute a shot was heard, and Mussett fell from his horse, shot through the heart. Appellant claims that he shot to protect his life; that Mussett was just drawing to shoot him, when he drew and fired first. And a pistol was found near deceased's hand, but it was proven by the State that the codefendant Yndalacio Rosales placed the pistol there. The *122 appellant's statement makes it a case of self-defense, but it is contradicted by the other witnesses. He states that at the first meeting the marshal was insulting, and he simply asked him to investigate the matter. On the contrary, the witness Mitchell heard him denouncing Mussett's informant as a liar. At the second meeting he claims that the marshal did the threatening, and he was quiet; but Vela, defendant's witness, says there was loud talking by both parties. At the third meeting he says the deceased again renewed the charge, and he told him that his informant was a liar; that the deceased asserted "it was true;" that he replied "it was a lie;" that deceased replied, "You can't tell me that, you lying son-of-a-bitch," and drew his pistol, but before he could use it he shot him. Francisco Grande says Parker rode up and spoke. He does not know what was said, but in half a minute or so the pistol fired and killed deceased. Witness closed his shutters and went across the street, and was told by Yndalacio Rosales that appellant; "killed deceased for nothing."
1. Appellant complains that the court erred in his charge on self-defense. The charge practically instructed the jury, that if they believed defendant's version of the difficulty, they should acquit him; and also charged them that the defendant would be justified in killing deceased if done to prevent deceased from wounding or maiming him; but, to justify the killing, it must reasonably appear from the words and acts of deceased that he intended to murder or maim defendant, and the killing must be done while deceased was in the act of commit ting such offense, or after some act done by him showing such evident intention. A similar charge by the same judge was sustained by this court in the Gonzalez case, 30 Texas Criminal Appeals, 225; and, though in some respects subject to the criticism of appellant's counsel, it practically states the law, and, there being no exception to it, we do not think, upon the whole case, appellant has received any injury. Cunningham's case, 17 Texas Crim. App., 99; Davis' case, 28 Texas Crim. App., 553; Penal Code, art. 570, subdivs. 1, 2. The jury evidently rejected the entire statement of appellant upon which alone any charge of self-defense could have been predicated, and appellant could not have been injured by reason of the imperfect charge.
2. The appellant complains that the court erred in overruling his motion to quash the special venire because of the failure of the return to show the diligence used in summoning the absent jurors. There were one hundred and twenty persons required to be summoned in the writ. The sheriff summoned ninety-three persons, and returned that eight persons named by him were found, by proper search and inquiry at their place of residence, not to be in the county, and that nineteen persons named in the return had not been summoned, as they resided or were in remote parts of the county, and after diligent effort could not be reached within the time allowed the sheriff for making *123 service and return. The writ was issued on the 9th of May, and made returnable on the 11th, the jurors to appear on the 13th of May. We think the return was sufficient. The time seems to have been very short, but the motion to quash did not present any objection on that ground, nor is it shown that the jurors summoned were not sufficient to enable the appellant to obtain a fair and impartial jury. Charles' case, 13 Texas Crim. App., 663.
3. The court did not err in permitting Cecilio Bustamente to testify in the case. The witness was twelve years old; on examination by the court, stated "it was wrong to tell a lie;" that if he told a lie he would be punished by law, but did not know what punishment would be inflicted; had never been to school; had been to the Catholic church. The court held the witness qualified. It has been repeatedly held by this court that the method of testing the competency of such a witness is confined to the discretion of the trial judge, and his determination of the question will not ordinarily be disturbed on appeal in the absence of any showing of abuse of the discretion. Taylor v. The State, 22 Texas Crim. App., 544. We see no abuse of discretion here. The testimony of the witness was connected and consistent, and corroborated. We see no other question requiring an examination, and the judgment is affirmed.
Affirmed.
HURT, Presiding Judge, concurs.
DAVIDSON, Judge, absent.
Addendum
In closing the argument for the State, counsel referred "in impassioned language to the pity that the jury owed to the deceased's family, instead of to the defendant, and urged the jury to bring in a verdict in support of the indictment; and after said argument, and before the charge of the court was given, the thronged audience applauded said argument, by the clapping of their hands and stamping of their feet, in the presence and hearing of the court and jury." The court, it *124 seems, of its own motion promptly suppressed the demonstrations, and reprimanded those applauding. Notwithstanding this prompt action of the court, counsel for appellant contend that this court should, because of such demonstrations on the part of the audience, reverse the judgment. There was no motion to change the venue of this case. There was no complaint that a fair trial could not be had in that county. If such a motion had been made, such conduct could have been looked to in passing upon the motion for new trial based upon the supposed error in overruling the motion for change of venue. But to make a rule that a judgment will be reversed because of such applauding in all cases, though promptly suppressed and reprimanded, would be very dangerous indeed. A person with death or imprisonment before him would not hesitate to have his friends ready and willing to applaud counsel for the State, with the risk of being sent to jail for contempt. This could all be arranged and executed, and the court could not ascertain the fraud by learning that the applause was instigated by the friends of the accused. We have very carefully examined the evidence in this case, and believe it establishes the guilt of appellant of murder of the first degree with reasonable certainty.
Now, we desire to state, (1) that this court can 'not pass upon the credibility of' witnesses; (2) that if the testimony of the boy (Bustamente) is true, appellant shot deceased without cause. In fact, appellant's version of the facts attending the homicide is absolutely false, and we can not reverse this judgment because the evidence fails to support the verdict.
In amended motion for rehearing, we find ex parte affidavits to the effect that the verdict of the jury was returned after the term of the court had expired. The record contains no such matter. Can we consider these affidavits? We can not. If in fact the verdict was returned after the term of court had expired, it and the judgment rendered thereon are null and void; that is, no verdict, and consequently no judgment. Now, if the sentence of the court upon a judgment entered upon a verdict thus returned should be attempted to be enforced, the defendant would have his remedy by writ of habeas corpus. On the trial of the writ, however, the State would have the right to be heard on the issue as to whether the verdict in fact was returned after the term of court had expired.
The motion for rehearing is refused.
Rehearing refused. *125