Vargas v. State , 104 Tex. Crim. 283 ( 1926 )

The appellant was convicted in the 94th District Court of Bexar County for murder, and his punishment assessed at confinement in the penitentiary for life.

The record discloses that the appellant was charged with murdering Louisa Garcia, about the 28th day of August, 1925, and that she was the wife of Gabriel Garcia. It also appears that Silverio Gomez was charged in the 37th District Court of Bexar County, in a separate indictment for an offense growing out of the same transaction. It was the contention of the state, and evidence was introduced in support thereof, that the appellant and another person entered the house occupied by the deceased and her husband, about 12 o'clock at night, and contended that they were lost and sought the assistance of Gabriel Garcia to show them the road, and that upon his getting up and going out in the yard to give them directions, he was knocked unconscious by them and remained in that condition for several hours, and that said parties struck the deceased over the head with some blunted instrument and inflicted a wound about four inches long, from the effects of which she died a day or two thereafter. The said Gabriel Garcia testified that the parties committing the assault had a flash light, and as he was going out of the house they flashed the light, and he recognized the appellant, and when he regained consciousness and spoke to his wife, she told him that both of the men had beaten her up and named the appellant as one of them. The record further discloses that said injured parties had a trunk in their residence at that time, which contained about $50.00, and that same was missing the next morning, and found open and the money gone, at a point where the officers were following horse tracks leading from near appellant's house. The record further discloses that the appellant had worked for Gabriel Garcia about a couple of months prior to the alleged homicide.

The appellant's defense was that of an alibi. By bill of exception 1 the appellant complains of the refusal of the court to grant him a severance, alleging that said Gomez is charged in the 37th District Court by indictment with an offense growing out of the same transaction for which this appellant stands charged in the said 94th District Court, and requested said Gomez be put on trial first in order that he might be favored with his testimony upon his, appellant's trial. Said motion for a severance is in the usual form and in addition thereto requests that the above entitled and numbered cause, referring to No. 32974, "be transferred to the 37th District Court for trial." The appellant treats said motion throughout his brief as a motion for severance, and not as a motion to transfer his cause to the 37th District Court, where the Gomez case was then pending. It is obviously apparent that the court in overruling said motion to sever committed no error for the reason that he had no jurisdiction whatever over the Gomez case, and had no authority to state when or how the 37th District Court should dispose of the Gomez case. There is nothing in the motion showing that the Gomez case had ever been set down for trial in the 37th District Court, or that the attorneys representing the appellant were in any manner interested in the Gomez trial, or that Gomez was willing that appellant's case should be tried first. We think the case of Price v. State, 152 S.W. 640;68 Tex. Crim. 556, decides this question against the contention made by the appellant, which decision has been followed in the case of Sapp v. State, 223 S.W. 549. Had the appellant desired to avail himself of the testimony of Gomez, he should have made a motion asking that his case be transferred from the 94th District Court to the 37th District Court, alleging and showing a state of facts which would authorize the court to make such an order and showing that by making said transfer it would not work a continuance in violation of Art. 727, C. C. P. of the Old Code and Art. 651 of the new code. See Estell v. State, 91 Tex.Crim. Rep.. In our opinion this bill as presented shows no error in the ruling of the court thereon.

Bill of exception 4 complains of the action of the court in permitting the state over his objection to have Gabriel Garcia to testify that when he got to the gate, referring to the two parties who came to his house, that they struck him, and he did not know any more until in the morning; that it was about 12 o'clock when those parties came to his house, and the next time he saw his wife was in the morning, and he spoke to her, that she was found about 20 paces from the house in the yard; that when he first talked to her she said it was both of the men that went in there, referring to her house, that beat her up, and gave the name of the appellant. The appellant objects to said testimony because it was heresay and was not shown to have been a part of the res gestae. This bill as presented is too general and fails to disclose that the evidence was not res gestae, as required by the rules and decisions of this court, and also fails to show what portion of said testimony above mentioned was objected to, and the part narrated by the witness Gabriel Garcia as to his being assaulted and knocked unconscious was clearly admissible, and this court having held that where part of the testimony objected to is admissible and part might not be admissible, and the bill does not specifically urge the objection to the objectionable part, this court will not consider it. We are unable to say from the bill as presented that there was any error in the ruling of the court thereon. See Punchard v. State, 249 S.W. 939; Rutherford v. State, 277 S.W. 669; Branch's P. C., Secs. 207, 209, 210 and 211.

The appellant also objects to the court's charge on principals and because the court failed to charge the converse of the law of principals, to the effect that if the appellant was present at the time of the commission of the offense and did not encourage by acts, words or gestures, the party committing the offense that he would not be guilty. There is no evidence raising this issue, to the contrary the appellant's sole defense urged, and he so testified, was that of an alibi. There being no issue raised as to the appellant's being present and not participating in the assault, and the court having properly charged on the defense of alibi, we are unable to reach the conclusion that the court was in error in not charging on said issue. Besides we are clearly of the opinion that such omission, if error, was not calculated to injure the rights of the appellant, or show he had not had a fair trial, and under the facts of this case, and Art. 666 Cow. C. P. of the new code, 743 of the old code, we would be unauthorized to hold that this was reversible error.

After a careful examination of the entire record, we have been unable to find any reversible error, and are therefore of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

Morrow, Presiding Judge, absent.

ON MOTION FOR REHEARING.