Montalbo v. State ( 1942 )

HAWKINS, Presiding Judge.

The two Montalbos and Lopez were jointly, indicted and jointly tried for murder of Eduardo Roquet. All three appellants were convicted. The punishment assessed against Mauro Montalbo was twenty-five years in the penitentiary, and ten years each against Lopez and Domingo Montalbo.

The killing occurred at Johnny Lund’s drink and dance place. Martin Rodriguez was manager of the place and Roquet was a cook. The place consisted of several buildings, all connected with one another. Drinks were sold in one of the houses referred to by the witnesses as “the saloon”; the dance hall was in another of the buildings. The evidence shows that the three appellants and some other companions came to this place bringing with them some beer and whisky. They purchased more beer and drank the beer and whisky. The state introduced in evidence the confession of each appellant, and each appellant testified as a witness.

It appears that Domingo Montalbo danced with one of the girls present, and when the dance was over he tendered her a nickel as payment for her dancing; she refused the nickel and demanded a dime which she claimed was the regular pay for a dance. An argument ensued. At this point Rodriguez appeared and insisted that Domingo pay the girl a dime. Words followed and a fight started between Domingo and Rodriguez. Mauro Montalbo, a brother of Domingo, entered the fight and caught Rodriguez by the hair while Domingo and Lopez were striking him with their fists and beer bottles. Rodriguez broke away from them, and went to the saloon where he secured a 410 gauge shotgun, and was returning with it to the dance hall. Mauro Montalbo met him at or near the door and was trying to take the gun away from Rodriguez. Lopez came to Mauro’s aid and Lopez got the gun away from Rodriguez and struck him on the head with it, and Rodriguez fell to the ground. He regained his feet and ran away. About the time Lopez got the gun away from Rodriguez Roquet appeared on the scene for the first time. He attempted to take the gun from Lopez, who struck Roquet on the head with the gun, knocking him down, and then struck him again after he was down, at which time Domingo struck him on the head with a beer bottle, breaking the bottle. While Roquet was on the ground Mauro got on him and cut him with a pocket knife on both sides of his face or throat. Roquet died from the knife wounds. The doctor testified that the knife wounds were “deep, penetrating wounds” from which deceased bled to death. It is evident from the doctor’s testimony that the wounds inflicted on Roquet by striking with the gun and beer bottles in no way contributed to cause his death. The doctor says, “He had a few small bruises, but they were not of any consequence whatsoever. He had some bruises on his head but they were very slight bruises — very slight.”

There are no bills of exception in the record. In their brief counsel for appellants contend that the killing of Roquet resulted from a drunken brawl entered into by all parties, and that there is lacking any evidence of malice or intent to kill on the part of any of the appellants, and that especially is this true with reference to appellants Domingo Montalbo and Lucas Lopez.

We believe the contention is without support insofar as it concerns the conviction of Mauro Montalbo.

We now consider the contention as it relates to Lopez and Domingo Montalbo under the undisputed evidence, and the rules of law controlling.

There is no hint in the evidence even that any previously formed design existed among the three appellants to kill Roquet or Rodriguez or any other person when they went to the scene of the difficulty. The evidence is positive that Mauro Montalbo actually did the killing. The only way Lopez and Domingo could possibly be guilty as principals is under the provision of Art. 66 of our Penal Code which denounces one as a principal who is present when another commits an offense, and knowing the unlawful intent of such other aids him by acts, or encourages him by words or gestures in the commission of the unlawful act. The trial court recognized this, and instructed the jury that before Lopez and Domingo could be convicted as principals in the murder of Roquet the jury must find beyond a reasonable doubt that Maúro Montalbo with malice aforethought killed Roquet with a knife, and must further find beyond a reasonable doubt that Domingo and Lopez were vrezewt and knowing the unlawful intent of Mauro, — which in this case was the intent to kill Roquet with a knife — aided him by acts or encouraged him by words or gestures in the commission of the offense.

In making out its case in chief the State introduced the confessions of Domingo Montalbo and Lopez. Both confessions embraced certain exculpatory statements which, if true, would have absolved each of said appellants of guilt as principals in the unlawful intent of Mauro to kill Roquet, unless said exculpatory statements were shown to be untrue by other evidence in the case. For statement of the general rule regarding exculpatory statements put in evidence by the State see 18 Tex. Jur. p. 27, Sec. 13; Branch’s Ann. Tex. P. C., p. 44; Sec. 73; Otts v. State, 135 Tex. Cr. R. 28, 116 S. W. (2d) 1084, in which many cases on the subject are reviewed, especially with reference to the necessity of instructions to the jury upon the subject. The careful trial judge in the present case did instruct the jury that the State was bound by the statements in the confessions which it had introduced, and that if they contained. statements which would exculpate the one making them of the crime committed, such appellant making such exculpatory statements should be acquitted, unless the exculpatory statement had been shown by the evidence to be untrue. There is no fault in the instructions, but it occurs to us that the action of the jury in finding Domingo and Lopez to have been guilty was in the face of said instructions.

In Domingo’s confession he said as soon as he had struck Roquet with the beer bottle after Lopez had knocked him down with the gun, “I moved away from there, and I went to where our truck was, and I did not return to the scene of the fighting.” Domingo testified as a witness in his own behalf, but the State was not aided, thereby in showing the untruth of the quoted statement in the confession. As a witness before the jury Domingo upon the same point testified, “I hit him (Roquet) with a bottle, and then I ran and I do not know what else they did with Mauro or Mauro with them. From there I went to the truck, I did not see anything else happen.”

In the confession of Lopez introduced by the State is the following statement, “Roquet fell to the ground, and as he fell I hit him again with the shotgun on the head. I then left and I went and hid the shotgun under the house'. After I had hid the gun I went to the truck in which we had gone to this place, and I did not see any more of what was happening or what happened.” Lopez also testified in his own behalf, but the State was not aided thereby in showing his confession to be false. His evidence on the point involved follows: “When I saw him (Roquet) drop then I turned around and threw the gun under the saloon. And then I went to the pick-up. I do not know what happened after I hit this party and turned and threw the gun away; I did not see anything else that happened.” No other witness called by the State threw any light on the alleged participation of Domingo and Lopez with Mauro in the stabbing and killing of Roquet. Rodriguez ran away from the scene after the shotgun was taken away from him, and he says Roquet had not become involved in the difficulty at the time he (Rodriguez) left. A young man named Nayarga saw the parties disarm Rodriguez of the shotgun, and after he ran away the witness picked up from the ground a pistol which he delivered to his father. The witness saw no part of the difficulty in which Roquet was engaged. It developed that the pistol in question belonged to Rodriguez, and it was after he lost it that he went after the shotgun. None of the appellants claim to have seen the pistol in Rodriguez’s possession, and he apparently made no effort to use it. The two girls who were present in the dance hall when the argument started over the pay were in attendance at court but were not called as witnesses, explained perhaps by Rodriguez’s statement that they went to the saloon and remained there during the trouble.

From what has been said it appears that neither Lopez nor Domingo used any serious violence towards Roquet, and seems to negative the idea that either of them had any knowledge of an unlawful intent on Mauro’s part to kill Roquet with a knife. Indeed, according to the statements in the confession of each of them, they had nothing whatever to do with Mauro’s act in the premises, but that each of them had abandoned whatever assault they had' made upon Roquet, and had gone to their truck. With the record in this condition we think the evidence fails to show that the exculpatory statements of Domingo and Lopez were untrue. Therefore, as to them the judgment of conviction cannot be permitted to stand under the rules of law controlling.

The confession of Mauro contains statements upon which the jury could properly predicate a conviction of him for a killing upon malice.

The judgment is affirmed as to Mauro Montalbo, and reversed and remanded as to Domingo Montalbo and Lucas Lopez.

GRAVES, Judge, dissents.