Bejarano v. State ( 1879 )

Ector, P. J.

The defendant was indicted in the District Gourt of Bexar County, for the murder of Francisco Montero. He was convicted of murder in the second degree, and was adjudged to be imprisoned in the penitentiary for ninety-nine years. The defendant made a motion for new trial, and in arrest of judgment; both of which being overruled, he appealed the cause to this court, and has assigned the following errors, to wit: —

“ 1. The court erred in excusing the juror Julius Oppenheimer, before he was duly tested as to his qualifications as a juror.

“ 2. The court erred in ruling that J. H. Schaefer was a competent juror.

“3. The court erred in allowing the State’s witness Genoveva Rodriguez to testify to what deceased said.

“4. The court erred in refusing the charge asked for by the defendant.

“5. The court erred in overruling defendant’s motion for a new trial.

“6. The court erred in overruling the defendant’s motion in arrest of judgment.

“7. The court erred in not giving the law of manslaughter.”

In responding to the errors assigned, we will do so in the order in which they are presented in the record. ,

1. It appears from the, defendant’s bill of exceptions (as qualified by the court) that the juror Julius Oppenheimer had previously been tested, under oath, as to his qualifications, and he declared he was not a citizen of the United States and of this State; and on the day of trial, when the special venire was called by the order of the court, and Julius Oppenheimer’s name being called as a juror, he stated his disqualification, and was excused by the court without objection. Defendant’s counsel insists that the court clearly erred in excusing this juror, who was on the special venire, before he was called and tested as to his qualifications as a juror, and cites us to the case of Louis Robles v. The State, 5 Texas Ct. App. 346, in support of his position.

- An examination of the two cases will show a marked difference between them. The proper course for the defendant, or his counsel, if they had any objection to the action of the court in excusing the juror, would have been to have made it known when Oppenheimer was called on the special venire. If, when Oppenheimer was before the court, counsel for the defendant had expressed a desire that the juror should be again sworn and tested as to his qualification, it is reasonable to conclude that his wishes in this respect would have been complied with ; and that the court, although believing it an unnecessary consumption of time, would not have excused the juror, as was done.

2. The court did not err in holding that J. H. Schaefer was a competent juror. It appears from the defendant’s second bill of exceptions that, on the trial of the case, J. H. Schaefer, one of the jurors summoned on the special venire, on his examination before the court to ascertain whether he was a competent juror, said that he was not a householder; that he was a married man, with a family, and that he and his family lived with his father, at his father’s house; and • that, as a compensation for so living with his father, he furnished provisions for the entire family, including his father; that the house belonged to his father, and was under his father’s control, and that his father could turn him out at any time. The defendant objected to the ruling of the court in holding said Schaefer a competent juror, and tendered a bill of exceptions, and also challenged the juror peremptorily. The court, before signing the bill, added the following: 6 ‘ The truth of the matter is, the father, Schaefer, although the owner of the house in which the juror lived, did not keep house, but he lived with his son, the juror in question. The whole question arose from a subterfuge on the part of the juror to get excused ; but the result of the inquiry disclosed the fact that he was the head of a family, kept house, furnished the supplies for himself and family, and his father lived with him. Furthermore, that defendant had an abundance of challenges left when the jury was formed.”

If we were to admit that the court erred in holding Schaefer a competent juror, yet such ruling, in view of the facts, occasioned no injury to defendant; and, consequently, would furnish him no ground for the reversal of the judgment. The legitimate inference would be that, without exhausting his peremptory challenges, the defendant obtained a jury possessed of all the qualifications prescribed by law, with each of whom he was well satisfied, and to whom he was willing to submit the determination of his guilt or innocence. Johnson v. The State, 27 Texas, 765; Burrell v. The State, 18 Texas, 713; McGowans v. The State, 9 Yerg. 184.

There was manifestly no error in allowing the State’s witness Geneveva Rodriguez to testify to what the deceased said, which evidence was objected to by the defendant on the ground that it was hearsay, and a mere recital of a past event. The accused was present when the declaration which was objected to was made. For a proper understanding of this question, we will give a portion of the testimony, as we find it in the transcript before us.

Ursula Castro, the first witness introduced by the State, testified as follows : “ On the night of June 10th last, I had been down to' see my mother. Between seven and eight o’clock I started home, my mother accompanying me. When we reached the Rodriguez place, about three hundred yards below the property of Mr. Cocke and Mrs. Haifner, where the killing occurred, we saw an old man driving a cart, on which was an old and a young woman. I saw a stout, short man come out from the chapparal and stop the cart. He asked the old people where they were going with that woman; and was mad. The old woman told the young one to get out of the cart. The young woman said to the man, 6 You have no business to stop me, with my things.’ The man then went up to her, took her by the hair of the head, and pulled her from the cart. They left the cart, and went on up the street, quarrelling, as far as Cocke’s place. Myself and mother were waiting just behind them. He told the woman that no man but himself should ever live with her, —that he would till her first. She replied that she was not his wife, and he had no claims on her. He replied, ‘ I am more than a husband to you.’ The man and woman here stopped a •moment under the shade of a tree which stood right near the street. * * * My mother and myself passed them there, and just after passing them we met the deceased, Francisco Montero. He was going southward, and we were going northward. As Montero was passing the man and woman, the man said, ‘ Is that you, Pancho ? Here I have you where I want you; ’ then ran up to him and stabbed him. The deceased said nothing; he was unarmed, and offered no resistance. The woman halloed, ‘ Look out, Pancho; he’s got a knife! ’ As soon as deceased was stabbed, he • started to run, and the defendant ran after him. They ran across Laredo Street-, and on to the next street, where Montero fell dead, at the gate of Geneveva Rodriguez. * * * I saw him when he fell; the man was right close after him. The knife entered his right side, in the chest, near the collar-bone. * * * The moon shone brightly. Pancho and Francisco is the same name. * * * After the deceased was stabbed, he ran, I suppose, about two hundred and fifty yards before falling. I did not know the man who did the killing, and would not now recognize him. The woman, in talking to him, called him Bej araño. The conversation between the woman and man was in Spanish. They were Mexicans. I speak Spanish as well as I do English, — a little better, I think. My mother is a Spanish lady. I heard the man who did the stabbing say, after Montero fell, ‘ That is the way I like to see you. I am the man that did it; here I am ; take me, if you want to.’ ”

Geneveva Rodriguez, a witness also in behalf of the State, testified: “ I knew Francisco Montero. He is dead. I do not know the defendant. The deceased came running from Laredo Street, by Judge Devine’s lot, and stopped near my gate. I ran to the gate, and asked him what was the matter. Just following him was a stout, thick man. This man said, as he came up where Montero had fallen, at my gate, 61 am the man that done it; arrest me.’ * * * I do not know that I ever saw this short, thick man before, and could not recognize him. * * * When I asked the deceased what was the matter, he replied, ‘ A man has offended me.’ ” (This was the portion of the testimony that was objected to by the defendant as being hearsay, and a mere recital of a past event; and “ offended,” as here used, in the Mexican language, was afterwards proved to mean “injure,” or “ stab.”)

Tiburcio Leal, also a witness for the State, testified as follows : “ I know José Bejaraño, and knew the deceased. I was not present at the time of the difficulty. The defendant there passed by my gate soon after the difficulty occurred. My house is on Laredo Street, about two hundred yards below the property of Mr. Cocke and Mrs. Haffner, and on the opposite side of the street from theirs. I was sitting in front of my house on the night of the 10th of June, near Laredo Street, when I heard a noise above me like there was a fight or difficulty. I heard a woman’s voice say, * Look out; he’s got a knife ! ’ I then heard a noise as if running from Laredo Street to the next street west. I then went to the west end of my lot, which fronts on the main street west of Laredo Street, and when I got there I saw two men running, one after the other. The foremost man fell at the gate of Geneveva Rodriguez, who lives a little north of me, and on the opposite side of the street. I did not then recognize either of the parties. In a few minutes after the party fell at the gate, the defendant passed right near me, and said, ‘ I am the man that killed him; here I am ; arrest me if you want to do so.’ ”

The court below properly permitted the witness Geneveva Rodriguez to give the reply of the deceased, when asked “what was the matter?” It was admissible as a part of the res gestee. Boothe v. The State, 4 Texas Ct. App. 202.

After the court had submitted its charge to the jury, the defendant asked four additional instructions. Three of them were given, and the fourth refused by the court. The one which the court declined to give is as follows: “ If an injury be inflicted in a cruel manner, though with an instrument not likely, under ordinary circumstances, to produce death, the killing will be manslaughter, or murder, according to the facts of the case.”

While the last instruction asked by the defendant’s counsel is correct as- an abstract legal proposition, it was not applicable to any phase of the case as presented by the evidence. An instruction asked which is inapplicable should be refused, however correct it may be as an independent proposition.

The only grounds set out in defendant’s motion for new trial have already been considered and passed upon in this opinion.

The objection respecting the term of the court at which defendant was tried and convicted, which is presented in defendant’s motion in arrest of judgment, is not well taken. The same question has been decided by this court, during its present term, in the case of Cordova et al. v. The State, ante, p. 207. See the opinion of the court in that case.

There was no evidence before the jury which required the court to instruct them as to the circumstances which will reduce homicide from murder to manslaughter. It has often been held, both by our Supreme Court and this court, that it is only necessary to give such instructions as are applicable to every legitimate deduction which the jury may draw from the facts. If the deceased was killed by the accused, which was not controverted, the case was murder in the first degree or murder in the second degree.

And the fact that the evidence shows the deceased and the accused passed a portion of the night preceding the night of the killing, as friends, at the house of the defendant, singing and playing the guitar together, and separated on friendly terms, would not in the least mitigate or excuse the homicide. What wicked passion prompted the defendant to commit the homicide we are left to conjecture. The duration of the punishment assessed by the jury would not warrant us in disturbing the judgment, for it is supported by the law and the evidence.

Before passing from the case, we cannot too highly commend the judge who presided at the trial for the explanations made by him as to the facts and the reasons for his rulings on several of the points presented in the defendant’s bills of exception. By this course an appellate tribunal is often materially aided, and gets a true insight into the proceedings on the trial better than by any other method. There is no error in the judgment, and it is, therefore, affirmed.

Affirmed.