Galan v. State , 76 Tex. Crim. 619 ( 1915 )

Appellant was indicted for the murder of Felix Sanchez, alleged to have been committed on March 14, 1914. He was tried in December, 1914, and convicted of murder, — the lowest penalty, five years in the penitentiary, was assessed against him.

In his first bill of exceptions he complains that the court erred in refusing to sustain his objections to Wm. Blunt as a juror, and in holding Blunt qualified, causing him to peremptorily challenge him and thereby forcing W.A. Reece, an objectionable juror, upon him, he having exhausted his challenges before Reece was presented. The bill in no way shows how or why Reece was objectionable to him, nor that he was in any way even claimed to be disqualified. The bill shows his cause for challenging Blunt was: That upon his voir dire examination he declared his hearing was not good, and unless very favorably situated in the jury box he would not be able to hear the testimony of the witnesses from the witness stand, and at times there was a ringing in his ears which at times affected his hearing quite materially; that he was fifty-nine years old and never served as a juror but once before. In approving this bill, the court qualified it by stating: "That the juror seemed to readily hear and understand any and all questions asked by the court, and the juror stated that if he was placed near the witnesses he could hear and understand what they, the witnesses, might state, and the court stated to counsel that in case said juror was selected to serve on this jury he would be placed near the witness stand and in a favored position, the juror spoken to by the court in an ordinary tone of voice seemed to understand as well as the ordinary man." This bill shows no error. Oates v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 1194, and cases therein cited.

His next bill, No. 2, and his sixth, will be considered together. They are on the same subject and present the same question. They complain of the court's action in permitting introduced in evidence his voluntary statement made by him at his examining trial before R.A. Terry, the justice of the peace, for the reason, stated in No. 2, that said statement made by him was in Spanish, he having no knowledge of the English language, and the same was interpreted into English by an interpreter whose knowledge of English was very imperfect, and that said interpreter testified under oath, when his qualifications as interpreter was tested before the court, that the voluntary statement as submitted to him did not speak the truth in that the appellant is made to say that he said to the State's witness Chon Sanchez at or near the stump where the difficulty began, "that his, Chon Sanchez's mother could take out the stump," whereas, in fact, he stated that Chon Sanchez told him that "his (the defendant's) mother could take out the stump"; that defendant was not represented by counsel at the examining trial, and that he imperfectly understood the interpreter. In his sixth, the reason stated is, that it was not shown that he had been properly warned in the language which he understood, and said statement was not what defendant really said to the party writing down the same, it having been shown to be incorrect.

The court, in approving his bill No. 2, did so with this qualification: "The defendant introduced the party who did the interpreting in the examining court, and on the examining trial of defendant, and he testified in defendant's favor and to some extent changed the meaning of record as stated by defendant in his voluntary statement, but it was not clearly shown that the interpreter was incompetent or misunderstood the statement of defendant as made at the time of the examining trial, but only stated his, the interpreter's recollection of the proceeding as he remembered same, it, the examining trial, having occurred about a year, or at least many months prior to this final trial."

In approving bill No. 6, the court did so with this qualification: "The contention or the part of defendant was that he did not understand the interpretation as made, which contention was not established to the satisfaction of the court, and hence the foregoing conclusions inserted in this bill by counsel are not approved, the remainder of the bill is approved and is ordered filed as a part of the record in this case."

The statement, which was introduced in evidence, is not copied nor purported to be in either of said bills, nor is the substance of it given in either or both. Hence, neither bill presents the question in such a way that we can determine that the action of the court was in any way erroneous. It will be seen that appellant's objections are not approved as statements of facts by the judge, but the reverse of that seems to be true. Neither of the bills, nor both, show that the statement was not admissible. That the interpreter, or whoever wrote out the statement as given by the interpreter, might have made a mistake in one particular, would not of itself render the statement inadmissible.

The jury would hear the whole testimony as to any claimed mistake and might disregard the statement in the particular shown to be a mistake, if so, yet all the balance of the statement might clearly be admissible. It might be that the evidence on the subject, as a whole, in connection with the statement might make it appropriate for the court to instruct the jury as to what they could or could not consider, but no such complaint was made on the trial or now.

Omitting only the heading of appellant's bill No. 3, which merely gives the style and number of the cause and the court and term, it is:

"Be it remembered that upon the trial of the above styled and numbered cause, J.H. Winn, sheriff of Atascosa County, a witness for the State, was, at the request of the jury, and after the said jury had retired to consider of their verdict, permitted, over the objection of the defendant, to testify in response to questions of the foreman of the jury, as to the distance where the hat was found from the Sanchez camp, if possible, the court failing to instruct the said witness to make his statement in the language used by him in his examination as nearly as he could, and in response to said question of said foreman, the said witness proceeded to give testimony not previously given by him, and thereupon said witness testified as follows: Question by the foreman of the jury: ``We want to know the distance from where the hat was found to the Sanchez camp?' Answer: ``It was about one hundred and fifty yards, that's it.' Question: ``Did you step it off or measure it?' Answer: ``I guess it fifty or about fifty or sixty yards. Guesses at it, and part of it I measured. Found it beyond a cord of wood, about fifty or sixty yards; fifty or sixty yards from the Galan-Sanchez camp, I mean.'

"To all of which said testimony the defendant then and there objected for the reason that it was inadmissible for the witness to do more than repeat the language as nearly as he could, the evidence previously given by him, and because his testimony was new matter, and because the court had failed to instruct the said witness to make his statement to the jury in the language used by him in his examination as nearly as he could, because the said witness had testified in the case and was only recalled at the request of the jury, and the court overruled the said objections of the defendant, and permitted the witness to give the above testimony, and the defendant then and there excepted to all of said testimony, and now here tenders this his bill of exceptions No. 3, and prays that the same may be signed and made a part of the record in this case, which is accordingly done, with the additional statement that witness stated the distance above mentioned to be 150 or 160 yards from where the hat was found to Sanchez's camp.

"F.G. Chambliss, Judge 56th Jud. Dist. of Texas."

This bill was filed March 13, 1915. The rules for the requisites of bills of exceptions in criminal cases have been so long and so well established that it seems it should be useless to again state them. They have been clearly and distinctly stated by a long and uniform line of decisions of this court. Judge White, so long a Judge and Presiding Judge of this court, in his Ann. C.C.P., in 1900, states them and collated the authorities up to that date, in sections 807 to 862, inclusive, and in section 1123. In a large number of cases, too numerous to collate, but notably in James v. State, 63 Tex.Crim. Rep.; Conger v. State, 63 Tex.Crim. Rep., and Best v. State,72 Tex. Crim. 201, 164 S.W. Rep., 996, recently attention has been called to these rules and the said sections of Judge White's Annotated Procedure cited.

It occurs to us that no one could seriously contend that the above copied bill complies with these rules or any of them to such an extent as that this court can intelligently tell therefrom that any material or reversible error was committed by the trial judge. We stated specifically some of these rules in Best v. State, supra, and will here again copy them:

"1. The allegations thereof should be full and explicit, so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences.

"2. They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depend; otherwise they will not be considered.

"3. It must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been committed. It must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence or facts proven to render intelligible the ruling excepted to.

"4. It can not be aided either by a statement in reply to a motion for new trial or by the statement of facts.

"5. It controls even the statement of facts.

"6. Objections or the mere statement of the ground of objection in the bill is not the certificate of the judge that what is stated is true; it is the mere objections of the party.

"7. Inferences will not be indulged to supply omissions in them. Nor will the court, on appeal, supply omissions, nor aid the bills by inferences or presumption.

"8. Objections not affirmatively mentioned in the bill are deemed to have been waived.

"9. A bill to the admission of evidence is incomplete and insufficient which simply states the grounds of objections to the errors, but fail to state, as matters of fact, the matters upon which the objections were predicated."

They are each and all applicable to this bill. The bill states that the court permitted the sheriff, over his objections, "to testify in response to questions of the foreman of the jury as to the distance where the hat was found from the Sanchez camp, if possible." And then gives the question propounded by the foreman of the jury, asking that specific question and the answer to it that it was about 150 yards. We think it would be impossible from this whole bill or said portion of it, or any other portion of it, to tell how or in what possible way the question and answer could affect this case. No statement whatever in the bill is made showing this. The question is what is the distance from where the hat was found to the Sanchez camp? What hat? Whose hat? What did the location of any hat relatively from the Sanchez camp, as this bill shows, have to do with any fact, material or otherwise, in this case? Absolutely none so far as the bill shows. As we understand the qualification of the judge to the bill, he stated that the sheriff on the trial of the case stated that said distance was 150 or 160 yards. The bill does not show and we can not understand from it, unless as thus explained by the judge, what the previous testimony of the witness on the trial was. Under the rules we are prohibited from going to the statement of facts for enlightenment for any purpose to explain, modify, or make certain this bill. If we could go to the statement of facts for any purpose in connection with the bill, then we could go to it for all purposes whether to sustain the appellant in his objections or the court in his rulings. If we could go to the statement of facts, or the record otherwise than the bill, then we would find that the sheriff testified in his previous testimony precisely or substantially the same thing, without any question. So that in no contingency does this bill, or the ruling of the court shown thereby in connection therewith, show any reversible error.

Appellant's next bill is to this effect: That while said witness Winn, the sheriff, was testifying, after being recalled by the jury, the district attorney stated to the court in the presence of the jury that he was willing for the jury to take the map drawn by the State's witness Sanchez with them in their retirement, said map having been admitted by said witness Sanchez not to be a correct map or sketch and said map not having been admitted in evidence. This is the substance in full of this bill, except what we now state. Following what we have given above, the bill then proceeds to state that he objected to the statement of the district attorney in the presence of the jury, for the reason that it "was highly prejudicial to the defendant in this, that it was calculated to and did cause the jury to believe that the defendant did not want the jury to have said map or sketch, as the same might bear witness against said defendant, or in some manner give evidence against the defendant." And that he requested the court to instruct the jury not to consider said statement by the district attorney, and the court refused this. The court, in approving the bill, did so "with the exceptions of the deductions drawn by counsel in preparing the bill." This bill was filed March 13, 1915. The trial occurred, as stated, in December, 1914. What has been said about the insufficiency of bill No. 3 equally applies to this. The court, in his qualification, expressly excluded the deleterious deductions drawn by counsel in preparing the bill. As we understand, the offer of the district attorney that he was willing for the jury to take said map, was not accepted by either the court or the appellant. The jury was not permitted to take the map under the district attorney's expression of willingness that they should. The bill was merely to the fact that the district attorney stated to the trial judge in the hearing of the jury that he was willing for the jury to take the map with them. We can not see how this would or could present any reversible error. As stated, the court expressly disapproved appellant's contention of it having any bad effect on the jury. He accepted the bill as qualified and is bound by it under all the decisions.

Appellant's next bill, No. 5, shows this: That when the court was about to take a recess for the day until the following morning, in the presence and hearing of the jury, he said: "The court will now adjourn until tomorrow morning at 9 o'clock, and that the sheriff might take the defendant home where he belonged." By this bill appellant then proceeds to claim that said remark of the court was calculated to make the jury believe, and it made them believe, that the court was of the opinion that the defendant should be in jail for the reason that he was guilty of the offense for which he was being tried, and that said remark was an expression on the part of the court of his opinion of the case. The court, in allowing this bill, did so with this qualification: "The court at adjourning time stated that the court would be at recess until the following morning, and stated to the sheriff that he might take the defendant home where he belonged, the court, all officers and jurors serving on the case knowing as a physical fact that the defendant was being tried at Jourdanton, Texas, and the jail or place where defendant was confined was at Pleasanton, Texas, a distance of some four miles, and the sheriff was obliged to transfer the defendant to and from the jail each day he was on trial, the deductions drawn and presented by the bill I do not approve.

"F.G. Chambliss, Judge, 36th Dist. of Texas."

As explained, this bill presents no reversible error. The court, as stated in the qualification, expressly did not approve the deductions and claim of what the jury could draw and understand therefrom.

The only other bill appellant has is his No. 7. It is very brief and to this effect: That on the trial "the defendant presented to the court requested special charges Nos. 2 and 3, which the court refused to give," to which ruling he then and there excepted and now here tenders his bill of exceptions No. 7 and prays that the same be signed and made a part of the record, which is accordingly done. Signed by the judge.

During the trial appellant made no exception whatever to the charge of the court. The court's charge was filed on December 8th. Evidently it was then read to the jury. By his charge he properly defined and submitted to the jury murder and self-defense. He also gave a charge on manslaughter in the very language requested by appellant. His said charges two and three were in no way shown to have been presented to the judge prior to the time he charged the jury, nor does the record otherwise show that they were presented to him before he read his charge to the jury. The file mark thereon makes it evident that they were not presented to the judge for any action on his part until after he had given his main charge. Therefore, unquestionably under the Act of April 5, 1913, page 278, amending articles 735, 737, and 743, and adding article 737a to our Criminal Procedure, appellant has failed to raise or present this question so that we can review it. (Ross v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 305, and cases there cited.) In addition to this, since then, this court has so uniformly held in a large number of cases unnecessary to collate.

In addition to this, it has been the uniform holding of this court under said last articles cited of the Procedure, before amended, that appellant does not raise the question in a way that would authorize this court to review it. Ryan v. State,64 Tex. Crim. 628; Berg v. State, 64 Tex.Crim. Rep.; Byrd v. State, 69 Tex.Crim. Rep., 151 S.W. Rep., 1068, and the authorities cited in these several cases. A large number of other cases to the same effect could be cited but it is unnecessary.

We see no necessity at this time of detailing the testimony. All the questions raised can be properly passed upon and are passed upon without reciting any of the facts. We have carefully read and studied the statement of facts, and the charge of the court submits aptly and properly every question which was raised by the testimony.

The judgment is affirmed.

Affirmed.