De Los Santos v. State , 65 Tex. Crim. 518 ( 1912 )

At a former day of this term this case was affirmed, Presiding Judge Davidson dissenting. The decisions in this case are rather disjointed. Presiding Judge Davidson first wrote an opinion reversing and dismissing the case. The writer of this opinion not agreeing with him, wrote an opinion discussing only those questions the presiding judge had discussed in his original opinion, and this opinion became the opinion of a majority of the court. This much is said that the profession may understand the peculiar wording of the opinions. In the motion for a new trial appellant insists that the court erred in holding that the evidence sustained the verdict, and that the trial court erred in not charging on circumstantial evidence. The summary of the evidence is set out in the original opinion, and when we consider that, under our laws, the jury is made the judges of the credibility of the witnesses and the weight to be given the testimony, where there is evidence that would authorize their verdict this court should not disturb it. Appellant in his motion calls our attention that under article 723 of the Code of Criminal Procedure, an error on the part of the trial court in his charge may be challenged and called to the attention of the court in the motion for a new trial. This is admitted to be the law, but in the same article it is also provided that when the attention of the court is called to it by exception, or in the motion for new trial, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant. This is as much a part of the law as that part called to our attention by appellant, and this court is bound by all the provisions of the law.

Appellant in his motion for new trial complains that the court erred in failing to charge on circumstantial evidence. Admit that the court should have so charged, as to appellant's knowledge that gaming was being carried on in the room, for every other fact is proven by positive testimony, was the failure of the court to so charge calculated to injure the rights of appellant when the court instructed the jury, "If the defendant sublet or rented a room in the building to Guillermo Cantu to be used by said Cantu as a barbershop and defendant did not know that Cantu was using said room for gaming purposes (if he was so using it) then defendant is not guilty; and in case you have a reasonable doubt as to this issue you must give the defendant the benefit of such doubt and acquit him." Thus the jury were told in positive terms by the court that if defendant did not know the building was being so used, to acquit appellant. That defendant had the house rented and paid the rent is proven beyond all doubt; that he had a saloon in one room is proven beyond all doubt; that gambling was being carried on in the building in a room adjoining the saloon room is proven beyond all doubt; the only issuable fact, on which a charge on circumstantial evidence would be called for, being, did defendant know the room was being so used? and the court tells the jury if they have any reasonable doubt that defendant knew that fact, they would acquit him. A witness swears that the bartender of defendant was serving beer to those engaged in gambling, consequently the bartender must have known of it, Jacobo Salizar testifying: "I saw the barkeeper enter the room where the men were with a bottle of beer." He also says: "I stopped in the kitchen and could see through the door leading from the kitchen into the room on the side of the kitchen. I saw several men in this room. They appeared to be gambling. On the table in this room I saw money and a box. When I entered the kitchen I saw the defendant. I saw the defendant come out of the kitchen; he went out of the kitchen towards the saloon." In the case of Cabrera v. State, 56 Tex.Crim. Rep., this court held: "Where upon a trial for murder the evidence showed that the defendant was in such juxtaposition to the homicide as to exclude any other issue than that of positive testimony, a charge on circumstantial evidence was not required." In that case our presiding judge concurred in that opinion, and if under the evidence in that case a charge on circumstantial evidence was not called for, then, under the facts in this case, where it is shown that appellant was seen coming out of a room (at the time the gambling was going on) that a witness says the gambling could be seen from, and that while in the room he saw the gambling, it would not be. Appellant in his testimony admits passing through this room, although he denies knowledge of the gambling. In the Cabrera case, supra, the question is discussed at length and authorities of this State are cited, which are here referred to. But, as hereinbefore stated, if it be conceded that a charge on circumstantial evidence should have been given, when all the elements that go to make the offense are proven by positive testimony, except the bringing of knowledge home to defendant, and this proven in the manner stated, and the other circumstances in the case, and the court instructs the jury to acquit him, unless they find he did know that gambling was going on in the room, the error was not such as to call for a reversal of the case, for the law that binds this court is that, unless the error was such as was calculated to injure appellant, the court must not reverse the case. In the case of Wright v. State, 40 Tex.Crim. Rep., in writing the opinion, Presiding Judge Davidson says of a charge complained of: "This charge was wrong and should not have been given. . . . Under the recent Act of the Legislature the error in the charge must be calculated to injure the rights of the accused before this court would be authorized to reverse the judgment. And not only must the error be calculated to injure the rights of the defendant, but it must be excepted to at the time of the trial or on motion for new trial. This matter was brought forward in the motion for new trial, but inasmuch as under the peculiar facts of this case, it was not calculated to injure the rights of defendant, we would not be authorized to reverse the judgment." In the case of Lucas v. State, 39 Tex.Crim. Rep., our Presiding Judge again held that the court wrongfully instructed the jury, but that the error was not calculated to injure the rights of defendant, and affirmed the case. In Areola v. State, 40 Tex.Crim. Rep., he again says that the error therein recited was not such as to authorize a reversal of the case. We could cite other cases decided by this court, but deem it useless, for if we are to follow the law as laid down in Cabrero v. State, supra, it was not necessary for the court to charge on circumstantial evidence, and even if it would have been proper then, under the other decisions cited herein, the error was not such as would authorize a reversal of the case, for the court instructed the jury they must find as a fact that defendant had knowledge of the gambling, or they would acquit him, and failing to instruct them they might find this fact from circumstances in the case, would be immaterial, since they are required to find it as a positive fact before they would be authorized to return a verdict of guilty.

Again in the dissenting opinion, considerable space is devoted to discussing a paragraph in the charge. The only reference in the motion for new trial to this paragraph reads as follows: "Because the court erred in giving the following instruction to the jury, to wit: ``You are instructed that when a person rents the whole of a building from the owner and uses a part of it for his own purposes, and sublets other parts of it to other persons, he is nevertheless in control of the entire building within the meaning of the gaming law.'" It will be thus seen that at the time of acting on the motion for new trial no error was pointed out in this paragraph of the charge, and no reason stated why this paragraph was not a correct presentation of the law as applicable to the evidence in this case. However, some twenty-seven days subsequent to the adjournment of the court the court approves a bill of exceptions excepting to this paragraph and stating some objections thereto. These were fully discussed in the original opinion, and we do not deem it necessary to again do so, only adding that the theory of appellant that the laws relating to property, its ownership, renting, subletting, etc., because embraced in the civil statutes, have no application to criminal cases, is a new one to us. The law as to property rights are all civil in their name, while a violation of those rights may become a criminal offense, and in arriving at the rights of the parties it is necessary to decide what is the law of the State, and it is the same whether arising in a civil or criminal case. In this case the court required in his charge that appellant had knowledge that gambling was being carried on in the room, or they would acquit him.

Appellant complains that we did not discuss the sixth ground in the motion for new trial, this ground being that the rule was demanded, and all witnesses were placed under the rule. Thereafter the district attorney summoned two members of the grand jury as witnesses; they were not placed under the rule, and were permitted to remain in the courtroom. When one of them was offered as a witness defendant objected to him then being permitted to testify on the ground that he had not been placed under the rule. When the objection was made, the district attorney withdrew the witness and neither of them testified in the case. It has always been held that whether a witness is permitted to testify who is not placed under the rule, when the rule is demanded, is a matter within the discretion of the trial judge, and in the absence of a showing that the discretion had been abused, this court would not consider the matter. In this case as neither of the witnesses testified, certainly no error is shown.

The only other ground presented in the motion for a new trial deals with the facts and insists that the evidence does not support the verdict. We are referred to the case of Brown v. State, 49 Tex.Crim. Rep., 93 S.W. Rep., 723. In that case the person renting the building testified and the evidence excluded the idea that Brown knew that gambling was being carried on in the house. No fact or circumstance was testified to that would tend to show that he did have knowledge of such fact. In this case the evidence is wholly different, and appellant is placed in a position where he must have had knowledge of it. Jacobo Salizar testified that he saw appellant's bartender carry beer in the room where the gambling was going on; he also testified when he got in the kitchen room he could see them gambling. That he saw appellant in this kitchen room at that time, and if he and the sheriff could see and hear the gamblers, there is no reason given why appellant could not do so. He is not shown to be either deaf or blind. While appellant testified that he rented the house to Cantu for a barbershop, there is no evidence in the record that he was a barber — the only evidence as to his vocation was that he had been convicted of being a common gambler. The record does not disclose that any barber chair or other supplies of kindred nature were in, or had ever been placed in, the room. All the furniture shown to have been in the room was a table upon which was a green cloth, upon which men were engaged in playing a game of cards called monte; there being several decks of cards in a box on the table. The evidence, while not fully, is yet sufficiently set forth in the original opinion, and under it, if the jury believed the evidence offered on behalf of the State, they would be authorized to return the verdict they did return.

Motion for rehearing is overruled.

Overruled.