Escareno v. State , 1884 Tex. Crim. App. LEXIS 74 ( 1884 )

Hurt, Judge.

Appellant was tried and convicted of the murder of Venturo del Toro, in Bexar county. He was convicted of murder of the first degree and his punishment was assessed at death. Judgment being entered up on the verdict, and his motion for new trial being overruled, he appeals to this court.

For a reversal of the judgment, the following assignments of error are made by counsel for appellant:

1. " The court erred in not charging the jury the law applicable to manslaughter.”

2. " The court erred in not causing the verdict translated to defendant, he not being able to understand the English language, as record shows; in which the verdict of the jury was written, and read in open court.”

3. “ The court erred in overruling the fifth ground of defendant’s original motion for a new trial, as will more fully appear from the record.”

4. " The court erred in hot having the defendant himself present in court at the time of the hearing and overruling of defendant’s motion for a new trial, the same having been waived by counsel instead of by the defendant himself, as the law requires.”

First assignment: Did the evidence, or any evidence, adduced on the trial require of the court a charge upon manslaughter? If there was evidence requiring such a charge, the omission being complained of first in the motion for new trial, were the rights of defendant injured, or was the omission calculated to injure his rights?

If manslaughter be in this case, it is so solely by reason of the following evidence: Ysidoro Rosas, Venturo del Toro and Jesus Basques were going from Medina to San Antonio with wagons loaded with wood. When within about six and one-half miles of San Antonio they met Mr. Campbell and defendant in a wagon going in the direction of Medina. After the wagons had passed each other, Campbell saw a man walking behind the hindmost wagon of the company, going to San Antonio. This man looked up toward the defendant and said “cabrón.” (It is admitted that “cabrón” means a man who consents to his wife’s prostitution.) Campbell drove on about fifty yards, when defendant caught the lines, and stopped the team, and said he was going to the mission. He got out of the wagon,, went to the rear and took his pistol from his blanket, and buckled it around him and entered the brush on the same side of the road. The deceased and his party had got on about two hundred yards, when defendant overtook them, asked the deceased to dismount, and 'while in the act of dismounting — with one foot on the ground and the other in the stirrup—the deceased was shot by the defendant through the head and instantly killed.

Now it is urged by counsel for defendant that the word “ cabrón” was an insult to his wife, and that, if the killing was induced by this, it would not be murder, but manslaughter, and that therefore the court erred in failing to charge the law relative to this matter, contained in the fourth subdivision of Article 597, Penal Code.

“ It must be borne in mind that there was no objection to this omission, nor instructions asked supplying the alleged defect. But the vital question presented by the statement of facts is whether or not the deceased was the person who spoke the insulting words. If not, certainly defendant cannot complain of this matter. And the rule being that when there was no objection made at the time, nor the omission sought to be cured by requested charges, it must be made to appear to this court that the error or omission was calculated to injure the rights of the defendant. Looking to the record in this case, does it appear to us that the omission in the charge complained of was calculated to injure the defendant? If* it appeared from the evidence that Venturo del Toro (the deceased) was the person who used the word “ cabrón” to defendant just before the homicide, this being an insulting word toward a female relative of defendant, it would be made apparent that the court should have charged the law relating to this matter. But how can We say and rule that the omission was not only error, but such error as was calculated to injure the rights of the defendant, when the proof fails to show that it was the deceased who spoke the insulting words? The injury must appear, manifest itself, and not be assumed by this court.

But in fact and reality was this insulting language toward defendant’s wife the true cause of this homicide? Let us look a little further into this record. In his motion for new trial appellant swears that upon another trial he will prove by certain witnesses that Del Toro and his friends had threatened to run him out of the country or kill him. It is not stated in this motion nor the supporting affidavit that Del Toro or any of his party did any act whatever tending to show any intention to execute these threats. If the facts were all established upon another trial, as set forth in the motion for new trial, nothing less than a homicide instigated purely by revenge would be developed by or result from these facts.

Here then we have, no doubt, the moving and real cause of this calm, cool and deliberate homicide. It was not prompted by the insult to his wife, but by a wicked desire for terrible and bloody revenge, growing out of quite another matter. Looking then to the whole record in the case, it does not appear to us that the omission in the charge complained of was calculated to injure the rights of defendant, or that for this supposed error the judgment will be reversed.

The second and fourth assignments of error will be considered together. We are not informed by the record whether the verdict of the jury was translated into the language of the defendant or not. There is no bill of exceptions reserved. Certainly, then, this court will not proceed upon the assumption that everything stated in the motion for new trial is true; nor are we to be understood as intimating that this was necessary.

These observations apply also to the fourth assignment. It does not affirmatively appear from the record that defendant was not present when his motion for new trial was overruled, nor does it affirmatively appear that he was present. We therefore presume that he was present, as the presumption is in favor of the legality of all the steps taken in the case. But suppose the record shows affirmatively that he was not present when his motion for new trial was overruled, in the assignment of errors it is conceded that this right was waived by his counsel. The question then is, is defendant bound by this waiver? What is the presumption? It is that his counsel was authorized by defendant to make the waiver, and that defendant is bound by it unless he shows that in fact he did not so authorize it.

These are nice questions, and we allude to them for the purpose of calling the attention of the trial judges to the necessity of keeping the records purged of all such matters. Why will the learned judges presiding hazard well deserved and otherwise certain punishment upon a decision of such questions? questions which have a place in the record not of necessity, but by reason of inexcusable negligence and indifference to the solemn proceedings made necessary by the Code to be pursued, in order to the due and proper administration of the criminal laws and the certain punishment of those who are guilty of their violation.

If a citizen is placed upon trial for felony, and especially for capital felony, it is the duty and should be the aim of the trial courts to make the record affirmatively show that each and every step necessary to a due and legal trial has been made or taken, and the greatest caution should be used to keep the record clear of all doubtful questions of practice. There being nothing in the record showing that defendant was not present when his motion for new trial was overruled, this assignment is not well taken.

By reference to the'fifth ground urged in the motion for new trial, it will be found that an explanation or reason is therein sought to be given to excuse the supposed negligence of defendant’s counsel in not having certain witnesses served with process. To this matter the third assignment refers. As we have, stated above, the facts which appellant swears he expects to establish by these witnesses would not, if true, tend to justify, extenuate or mitigate the offense or killing. On the contrary, they would, as presented to us by the record, tend with great force to prove a homicide upon express malice,. This being the case, the court below did not err in refusing a new trial.

Counsel for defendant does not insist in his assignments of error that the verdict of the jury is not supported by the evidence. In this we commend him, for to our minds this unfortunate man is clearly shown by the evidence to be guilty of premeditated and deliberate murder. We have examined all the assignments of error, as well as the grounds relied upon for a new trial, and find nothing in this record which would authorize the reversal of this judgment. The judgment is affirmed.

Affirmed„

Opinion delivered April 30, 1884