*1 Ceimiítal Beeobts. 563 {June. Trevino v. The State. Octavino February 13, No. 4875. 1918. Decided 5, Behearing granted June 1918. in District Court. —Murder—Indictment—Practice 1. murder, Where, appeal from a conviction contended jury by trial case the indictment not read was that district attorney, his motion for which for time he raised trial, contrary, reversible showed there but the records a new
error. Buie—Interpreter. 2.—Same—Confesson—Witness Under permitting Spanish inter- Upon error in trial of murder there been because preter testify defendant confessions of the rule, substantially showing that the rule had not been placed under the the record and, besides, proved without violated objection. Exceptions—Custom. 8.—Same—Evidence—Bill of objecting a certain custom exceptions Where bill as to questions pro- among pounded, the answers to Mexicans at a dance did not disclose testimony was withdrawn from character of besides all this harmless, court, there was no re- and was moreover charge of the jury versible error. —Same—Provoking Difficulty—Charge Court. 4. murder, Where, evidence failed to issue trial of raise part to submit error on of the-court it was reversible provoking the of pro- opinion do not raise for charge thereon. See facts Judge, dissenting. difficulty. Prendergast, voking the Stated—Provoking Difficulty—Self-defense. 5.—Same—Buie justifiable homi- always direct conflict with difficulty acts, by his words conduct or permissible unless the accused cide is not homi- precede and lead to the produces difficulty, and these occasions otherwise, perfect con- cide; limiting right of self-defense would as in the error, provoking reversible stitute instant Judge, Prendergast, self-defense. doctrine never be to limit the case can used dissenting. Language. 6.—Same—Cases Stated—Provocative during progress originally, wrong the accused Where pro- be considered language, it would not provocative used of .the dissenting. Prendergast, Judge, voking the Tried below before Tom Green. District Court from the Appeal Dubois. C. E. Hon. im- two years manslaughter; penalty, a conviction Appeal in the penitentiary. prisonment the case. states
The opinion indict reading On question Upton, appellant. Anderson & 420; v. Essary App., Texas Crim. State, 15 v. Wilkins jury: ment 927. Rep., S. W. 111 Rep., Texas Crim. State, 53 State, v. 197 S. W. Martinez difficulty: of provoking On question 563 The State. v. 1918.1 W. 443, 165 S. Crim. Rep., v. 872; Humphrey Rep., State, 67 Rogers v. 49; Johnson Rep., S. W. State, 159 589; Rep., Rep., W. 441, 149 S. Rep., Texas Crim. *2 Thomas, Dis General, and J. Hendricks, Attorney Assistant E. B. difficulty: of provoking On question the State. Attorney, for trict Mason 581; 551, 135 W. State, Rep., S. Rep., 61 Texas Crim. v. Bests State, 66; v. Sorrell 501, 163 S. W. Rep., Crim. State, Rep., v. 72 Texas v. 299; Rep., Gray W. 505, 169 S. Rep., Crim. State, 193 S. W. 1179; Stanley S. W. 454, 135 Rep., Rep., Crim. Rep., Appellant was and tried for indicted
PRENDERGAST, convicted manslaughter murder of Luis Sepulveda assessed. lowest punishment read by the indictment was not that on the triál
He contends until raised way to the jury. district attorney The court verdict and judgment. trial after the motion for new by that motion. was proved on this testimony ground heard the took their seats the jury sworn and empaneled, jury regularly rule, under the sworn, then ordered box; that-the witnesses were stand; that witness, called his who took district attorney swore, in two for the attorneys appellant as the attorney, the district That that he would defendant. arraign announced substance, then did, to stand which he and the dis- up, was then ordered the defendant and the from the jury, judge appellant, trict about attorney, equi-distant and the court asked whether indictment in English, read the in Spanish. and he answered something Hpon or not guilty guilty, then, did not understand English the suggestion, and he read init interpreter Spanish indictment was to the court given that the indictment then guilty; that the defendant plead One attorney jury specially. read the district not again by that at the time and under swore attorneys prosecution sworn, had been empaneled after circumstances rule, under the and one witness who had been and placed witnesses sworn said, “I read the stand, the district will attorney that called, took the it, the defendant can hear jury, they where indictment before attorney And that the district at the same time.” arraigned can be and that suggestion the indictment English read in- that he handed the not understand English, could the appellant read and and the court interpreter interpreter dictment to the court appellant pleaded Spanish explained it to the defendant to the same substantially swore stenographer The court not guilty. over- correctly testimony, hearing The trial thing. judge, clearly trial bn that ground. motion for new ruled the him to do so. authorized the court per- complains has another hill in which Beports. 83 Texas Criminal
5G4 mitted the Spanish interpreter by the confession testify, np proving witness appellant. objected to the at all on the testifying ground that as the rule had been invoiced and the had been in interpreter courtroom and heard the other was in-' competent explanation The court’s testify. stated that bill prior to the time said witness testified no other witness the case had witness, testified fact so testified to concerning to facts Moreover, the to the same. relating was proven witnesses without any objection, appellant himself swore testifying, he had the confession it was his signed signature thereto and to him before he it. signed was read over The action of the court interpreter under the permitting testify circumstances pre- sents error. bills, two other
Appellant has the court complaining per- mitted Chapoy testify Jose that there was a custom the Mexi- among if declined to dance with one girl cans that she should boy *3 not dance with The other boys during night. other is that himself, to district ask when attorney permitted testify- “You sister had your know that declined to dance Frank with ing, conversation, Bobles before didn’t you?” and “You know it is Mexicans, not, do that if you lady mle declines dance with among n one dance, at she does not dance with partner any other partner To which he answered that he did know his sister night?” Bobles, with Frank' declined dance had that he did not know or not whether custom any prevailed Mexicans. Ho other among .such explanation surroundings circumstances under which these n questions asked or answered were is disclosed one either of the bills. each The court of them the explanation' with that after it qualified n developed behalf, "defendant’s in testimony, his own testifying not know there lie did whether was such custom not then all this character of evidence was withdrawn -aby special charge which was given. the whole record these
Considering testimony, questions no answers had material special bearing any the case. question As the whole matter was withdrawn from the the written jury by n court, neither of the bills reversible error. present contends that did not raise the of- that, therefore, the court erred in submit that issue statement of ting jury. facts has been carefully studied and read and we are of the opinion that the evidence does raise cthe and that the court did not err it to the submitting jury.
Ho complaint is made the'charge subject. on But a brief state ment of the is on this necessary point.
There was a Mexican dance at house Lucas Chapoy. de- ceased was step-father and had Chapoy’s charge, and was master of ceremonies at the dance. sister attended Appellant’s dan.ce one of the dance dancers. After the had been lady in progress for v. Ti-ie State. 1918.1 Robles, men, Prank hours, several midnight, at about seems, dance, dance commenced her for a but before that engaged Andreas Pineda asked off from her. Thereupon was called off or went in Robles Thereupon her him and started to do so. to dance with she Pineda. At Robles’ objected request terfered and to her dancing took About this time- to dance with Pineda and her seat. she declined outside, sister came and asked his what appellant, who had been him he understood at the time what She told happening. nothing, when transpired had and he was the matter with discussing parties deceased hand shoulder or and either up put appellant’s struck him on the shoulder and to his with the objected interfering Thereupon appellant substance said to him if he was a dancing. house, man to come out of the and he himself went out'and de ceased followed out. out to the end They got and- gallery some further talk between them deceased shoved him off the gal lery. harlot,” then called deceased "son of a a most insulting deceased epithet. Whereupon immediately undertook assault him with his hands alone. The overwhelming-proof showed that deceased knife and arms whatever. Appellant off backed about two-thirds of an street eighty-foot when began shooting continued to do until he shot so him down and killed him. testimony raised issue of is hard to conceive insult to a man greater than have another tell him that he is a "son of a harlot.” One such an giving insult bound to know that the thus insulted party will resent it and at once strike him him, strike attempt as said by Judge Hurt Polk v. 30 Texas Crim. App., "Though may not have intended to the occasion or produce difficulty, yet this would be the reasonable and natural of his act, consequence which, law, he is held responsible, to the same responsible extent as*if he *4 Ann. had intended the difficulty.” See also 2 Branch’s C., P. section he lays where down the correct doctrine applicable herein and collates a number of large cases in point. is affirmed. judgment Affirmed. rehearing.
on 5, 1918. June Presiding ON, DAVIDS The opinionheretofore rendered is for attacked in a motion on the rehearing proposition issue of nor the case borne out difficulty by appellant facts, the his of by that self-defense was the right by charge illegally curtailed this by charge.
Provoking difficulty is in direct conflict with always justifiable homicide, acts, and is not the unless accused conduct permissible or or words occasioned produced the When self- perfect Crimjnai, Beports. be,
defense is relied the accused there should as upon by prerequisite accused the occasion to its evidence the impairment, produced acts, or an for the homicide. His conduct words excuse killing must be evidenced testimony. such condition precede and under the well considered views legal law under correct is the and lead to These facts must precede of this State. jurisprudence does not so begin, provoking homicide. If the difficulty self- case, right is not a of the and a charge limiting perfect part error, such a nature as to constitute constitute and of defense would fatal to the If the deceased began its conviction. giving necessarily is not in case. Provoking provoked difficulty, self- can never used to limit doctrine of deceased be difficulty by self-defense, only under rules defense. That doctrine pertains, can utilized not be difficulty by accused. of self-defense in therefore, to defeat or impair right are not abandonment homicide. Mutual combat far as statements are concerned. involved; here at least so the foregoing those issues. It would serve useful We discussing purpose are not either cite cases on or discuss proposition. recdrd, review of the from an has evidentiary A careful standpoint, trial convinced us that we were error sustaining judge limit- and thus upon provoking court giving Briefly self-defense. perfect right ing appellant’s this trouble arose a Mexican connection the evidence discloses that at dance, been seems to have under management supervision dance; she attended the That a sister of of the deceased. attendants; with one that he for to dance had an engagement room; thp accepted left the sister or reason purpose some attendant and went floor for the another companionship her that about this time re- accepted dancing; purpose partner she either dance him or retire'from demanded that with turned and for that dance became a evening. further ques- participation it was the custom Mexican dances for girls tion to whether or not occasions under the stated There retire from on such custom. dancing with reference this. At this ap- evidence and con juncture pro was, matter under discussion. the scene.. This pellant seems, above mentioned and were' conver- girl, two partners sation, was a the three at least there conversation going what and was informed of the happened asked present. thereupon trouble and controversy. suggested nature of the and when this dance with offered partners, his sister should ' , This was danced, sug- should dance the other. then she set was "then de- and to avoid trouble. Just spirit compromise in a gested *5 aside him Oetavino and told (appellant) ceased in and pushed own, not his and to get that was out.” in business not to intrude said, shoulder are you and "What appellant struck deceased then The State. 19L8.1 fool, into what are business intruding discussing—you you yourself that don’t him further and aside and said: pertain you?” pushed "What have to do was out.” This you beginning go trouble. both left room -is an They and went porch. issue under the extended the invitation to come as to which upon the occurred, however, after the conduct the de- porch. ceased the room and after and the defendant and striking pushing shoved, above using language imputed. While on porch or pushed knocked defendant off the It seems point this gallery. up true, defendant had said nor a word to deceased. It is nothing spoken however, in "Luis told appellant’s statement of the trouble he says: house, me to shut and told me I not out that was up get worth went and struck me on the with his fist. I shoulder anything, out on and Luis came out behind me. After Luis had porch, just hit me I told him if he man out the house.” Prior was a to come time or that deceased shoved knocked off the pushed, appellant deceased had made an him gallery assault before defendant had to him or him. anything concerning In view of what was said above about a difficulty, the lan- guage imputed appellant struck, after he he was if (deceased) man he would come any out on the would he considered gallery, difficulty. The in- already begun stance deceased. What occurred after defendant was pushed or knocked off the deceased is gallery under the conflicting testimony. Some of the defendant called deceased a of a say "son harlot.” Others did not hear this. Witnesses that after deceased had agree knocked he made a gallery toward de- spring fendant and defendant broke to run and ran about two-thirds of the street, distance an him, across with the eighty-foot deceased following at him before the fatal striking shot was fired. made a state- or ment confession. In this he states deceased was at him with striking his Then fists. follows this : from his statement or quotation "I do not know whether or not he had a knife He was any weapon. me, after running and when we were almost I across the street pulled and my pistol shot at him three times.” before the Appellant testifying in his own behalf substantially, that while he was on the porch deceased struck him again down, fist and he fell soon as he did that deceased his hand in put his pocket jumped him, street, after he ran across the because de- running his hand into his he put ceased pocket thought pull going knife, it; strike or would stab still deceased was him, and was in about coming two three feet of him when fired; hurt him that deceased did not with a He knife reach him.. further stated that he was while was running shooting. uses Luis because I further “I shot that he understood language: was very to kill me. was- I afraid of him. I tmng angry *6 Beports. 83 Criminal alive.”' me, not have remained killed I would scared—-if he should have to whether or There have been conflict the testimony seems to effect that he did is the knife. evidence deceased had a Some this. did not see it. Others a saw him get have knife and witnesses knife in the evening preceding had no Others testified deceased his person. homicide found no knife about and they not raise the issue of pro- We are does that this opinion some difficulty. Usually language voking harlot,” a would defendant, the "son of that deceased was impute beginning at the be a and had it been used considered provocation, treated as have been and the it would inducing cause difficulty n But as cause could he grounded. which provoking difficulty he the occasion stated, before provoking precede wrong is about the Where the accused bringing difficulty. lan- he uses such originally, during hut progress not he guage, would considered as proYoking ac- difficulty, as before is based upon proposition conduct, cused act such words does some some or uses perform view. would occasion or difficulty, purpose the de- If the deceased its provoked progress the difficulty during had it fendant does have the difficulty that would produced something a difficulty been used prior and, conclusion, arise, would hut facts we think do not justify therefore, jury, in error in submitting court was self-defense, thus curtailing appellant’s right heretofore, were in error in affirming judgment we Believing is set granted, the motion for of affirmance judgment is rehearing aside, the cause remanded. and remanded.
Reversed PRENDERGAST, opinion holding The original correct, and difficulty was raised undoubtedly the motion for overruled. should he I dissent from this rehearing opinion otherwise. holding
Wilbur Flewellen v. The State. 17, October
No. 4455. 1917. Decided Rehearing June denied 1.—Murder—Evidence—Conversation—Telephone—Res Gestae. sc con- admitting Upon there was no error evidence trial of murder telephone by his comnanion two certain over defendant versation im- and who killing, were the time of who were with deceased women homicide, companion place near portuned to defendant and meet companion women with imme- defendant’s of these conversation nor the diately homicide.