Perea v. State , 88 Tex. Crim. 382 ( 1920 )

LATTIMORE, Judge.

Appellant was convicted in the 34th District Court, of El Paso County, of the murder of one Maria Ramhack, alias Maria Gutierez, alias Maria Manzano, and his punishment fixed at death.

Complaint is made in appellant’s brief of the overruling of his motion for continuance. Examining the record, we find that no bill of exceptions appears therein to the court’s action in overruling said application. This is necessary. Branch’s Ann. P. C., See. 304, Vernon’s C. C. P., pp. 529-530; Wilson v. State, decided at tnis term.

By several bills of exception, complaint is made that the facts surrounding the killing of one Manuel Sanchez, and the finding of his body, were admitted in evidence upon this trial. It appears from the record that Manuel Sanchez, deceased, and appellant, left El Paso together on a hunting expedition on February 13, 1920. Appellant returned alone the next day, and proceeded to possess himself of the property of both Sanchez and deceased, and to make statements as to what had become of said parties. Being suspected some weeks later, appellant confessed that he killed both parties, and took officers to the place of the homicide, where he pointed out where Sanchez and the woman were buried, and helped exume the bodies of his two victims. Upon his trial he was charged with the murder alone of the woman, and was questioned as to the details of the dual killings, which took place in close proximity both as to time and place. We think the rule is, that when one crime becomes a part of the res gestae of another, or tends to shed light on the intent in the instant case, or to connect the accused with the offense for which -he is on trial, proof of same is admissible. Branch’s Ann. P. 0., Sec. 166.

The father of appellant, when testifying for the defense, was asked, “Now, as to his behavior after that accident, at times did you notice that, or remark that, or call it strange, or did you think anything of it?” The State’s objection to any answer to this was properly sustained. It is stated in the bill that the answer expected was that the defendant was crazy at times, and not responsible at times, after he had received a certain blow on his head some years before his homicide. We see nothing in said question callng for such answer. In the statement of facts, it appears that this witness noticed a change, that appellant seemed more quiet than before, and that at times he seemed more so. This would appear to fully answer the various inquiries contained in the above query. That which is stated to be the expected answer of the witness, appears to be in no wise responsive to the question objected to. This witness was not asked, nor did he state, his belief in the insanity of the appellant at any time.

A number of questions were asked by appellant, the evident purpose of which was to reflect upon the relations between deceased and the young man, Manuel Sanchez, who was killed by appellant upon the same occasion. Objections to all this were sustained. Appellant avers that he desired this evidence to shed light on how he viewed the threats which he testified were made to him by deceased immediately preceding her being killed. Appellant testified that after reaching their hunting camp, he and Sanchez went out after game, and while out, that he killed Sanchez, and that after he returned to camp, the woman kept asking him where Sanchez was, and that when the latter did not return, she drew a pistol and made threats against him, and that he shot her, fearing an attack with said pistol. He did not claim that he had any knowledge or belief regarding any illicit relations, if any, between the woman and Sanchez; nor was such matter referred to in any way by any of the parties on the day of the homicide; nor di'a tie claim that he was influenced to kill the woman by any such facts in any way. We are unable to seé the relevancy of such testimony. The trial court charged the jury on self-defense against any attack, or threatened attack, on the part, of deceased, with a pistol, as well as manslaughter, caused by sudden passion arising from any cause.

The defense of insanity was set up. We have carefully examined the record with special reference to this point. Appellant’s father, also his employers for many years before and down to the date of the homicide and after same, together with several physicians, and some of appellant’s friends, testified as witnesses in his behalf. Not one of them even expressed the opinion that at the time of the homicide or at any other time he was insane, or did not know right from wrong, or that it was wrong to kill. An expert physician, upon a full statement of the facts as made by the evidence, including the fact that for an unknown time prior to the homicide, appellant had been afflicted with syphilis declinen to state that in his opinion the accused was insane. This doctor said he had personally examined and talked to the defendant, and that his answers were very rational; that there was nothing in what he had learned himself about the defendant, nor in the hypothetical case stated to him, that would lead him to think there was any such mental derangement as that the accused did not know right from wrong. The burden is on the accused to show by a preponderance of the testimony, that the act charged was done by him in an insane state. In the condition of this record, as above indicated, we think there was no error in the action of the trial court in refusing to allow certain witnesses to state that syphilis frequently causes insanity.

No error appears in the refusal of the trial court to allow a witness to testify to the reputation of the accused for honesty and fair dealing. While it is true that the State, as a part of its proof, showed appropriation, by the accused of the property of the deceased after she was killed, still, when appellant took the stand, he admitted both the killing and the appropriation of the property. No issue was thus left upon which the rejected testimony shed any light.

Complaint is made of the refusal of the court to allow answers to certain questions. The court approved this bill, with the explanation that while he did then sustain the objection, he later admitted the testimony. This statement of the court is in no way controverted. As thus explained, the bill shows no error. Our practice is to consider as correct the court’s explanation in approving a bill of exceptions, unless in some legitimate way appellant then made his objection to such explanation, or show that he was deprived of his right, or opportunity to do so.

Objection was made to the statement of the officer Stansel, to the effect that the mother of appellant told him that appellant had a shotgun. It appeared that both deceased and Sanchez were killed by being shot with a shotgun. Appellant testified on his trial that he killed both of them by shooting them with a shotgun. The error, if any, in the admission of the mother’s statement, was thus rendered harmless. It also appears that no objection was made to the testimony of officer Stansel when given.

We have examined appellant’s other bills of exception, and considered each of them, as well as the evidence, in this case, in the light of all that appears in the record and the extreme penalty imposed by the. jury, but are unable to conclude that any error appears.

At the scene of the homicide, undergarments were found, and appellant told the officers that these were the garment of deceased, and that he had forcible connection with her before he killed her. After committing this fearful crime, he seems to have gone back to El Paso, and told a tissue of falsehoods as to where deceased and Sanchez were, and the next day took possession of the woman’s household goods and had them moved from place to place, into rooms rented by him. Also, by false representation, he obtained the woman’s car from a garage, and appropriated it. He went back to the same place he worked before he got leave of absence when he started on this trip, and worked there three weeks before he was arrested. While his associates and employers bore witness to his good reputation, none of them claimed for him insanity, and from the testimony, no other conclusion was possible than that he killed the woman, and the jury did not believe his story that it was in self-defense. The trial court is to be congratulated upon giving to the jury the law of each issue raised. This would obviate the necessity for many re-A’ersals.

All the issues having been fairly submitted to the jury, their settlement of the conflicts in the evidence against the accused, is deeisiAre.

The- judgment is affirmed.

Affirmed.