Vela v. State ( 1911 )

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing, and an able brief, in which he attacks both the conclusions of fact and law as announced in the original opinion.

The main contention of appellant is that we erred in holding that the corpus delicti was sufficiently established by the evidence, and cites a number of authorities, none of which, however, we think bear out his contention, for in this case, in the entire evidence, there is no suggestion that deceased may have died from any cause other than the shot in the stomach, and the evidence establishes beyond question that defendant fired the shot. Pablo Rodriguez testified:

"I was about ten steps from Edward (defendant) when Joe (deceased) drove by him. Joe came down the road there and was coming to Matia's house. When Joe got to where they were standing by the side of the road he stopped the buggy and got out and started to where the men were and hollered one time. It was Joe, the dead man, that did that. I don't think he took over five steps from his buggy before he hollered. I then told Joe not to holler, and he asked me why, and I told him that the other men might get insulted; it was Joe Castillo, the deceased, that did the hollering. Joe asked me then were these bad men, and defendant says, ``What is that for.' I didn't say anything, but Joe walked back to the buggy and leaned up against the buggy; leaned up against the hind wheel of the buggy. At this time Senovia was on the buggy seat then. I don't know about the distance that I was from Joe's buggy, but I was standing right about even with Joe's horse's head. I was about as close to Joe as I was to Edward. When Joe returned back to the buggy he was standing with his back to the buggy wheel. Edward was right straight in front of him then; when Joe returned over to the wheel of the buggy and leaned up against the wheel, Edward walked straight over to where Joe was; this was while Joe was leaning up against the buggy wheel. When he walked over there toward him he shot him with a pistol. I was in a position to see that pistol when he shot, and when he pulled that pistol and shot him, I saw that. Just before the shot was fired I did not hear Edward nor Joe say anything. After the shot was fired Joe was still there and Ed started in rear of the buggy and Senovia started to get out of the buggy, and that is when he shot Senovia Remires in the leg. Senovia was sitting on the seat at that time and Joe was leaning against the hind wheel; after he shot Joe and passed around the buggy he saw this other man Remires getting out of the buggy and whirled and shot him, too; then defendant broke and run. When the shots were fired they were so close together and I got so frightened and I didn't hear anything said if they said anything. Just after the shots were fired Joe, the deceased, made a few steps and come back and told me that his stomach hurt him, and I asked what was the matter, and I told him that I thought he got hurt; told him that he had got shot. He got shot in the righthand side; the ball didn't go through him. I do not know where Edward was then; he broke and ran and I don't know where he was as I gave my attention to Joe. I didn't see a pistol or knife or anything there by Joe; he never had anything. Joe hadn't been there on the grounds ten minutes before he got shot."

On cross-examination he testified: "I was standing right opposite Joe's horse's head, and I don't know, but I guess, that it was about ten steps from the horse's head, and Joe was standing at the back wheel; that would be about the middle of the buggy between the wheels. Edward (defendant) started right straight toward Joe and passed him and shot. Then he passed the hind wheel of the buggy; he was going then from the buggy and passed. He went straight across in rear of buggy. This defendant was standing right across from the hind wheel and Joe standing across this way and he went around the back of the buggy. He went about as far as from here to the pillow there when he fired the first shot. He hadn't gotten on the other side of the buggy when he shot; he was right there even with the wheel, on the one Joe was leaning against. He came along even with the wheel on the other side and shot back. I mean he passed around the buggy and shot back when he shot the second shot. I stood there until Joe walked off and started back there to me and said his stomach hurt him and I went up there to where he was. The only one I saw come back was Joe, when he leaned up against the buggy; Joe didn't ever change his position until after the shooting. Joe was shot in the right side and a little in front, about an inch and a half below the ribs; I didn't hear but two shots. I stayed there that night after the shooting; I stayed there until after the deceased died. I was here in court when they had the examining trial. The State didn't put me on at all; I didn't testify at all. I don't remember any more than that he killed him there."

Senovia Ramires testified: "Joe did not speak to anyone before he hollered there in the road. At that time I did not know of any trouble between Edward and Joe. When the buggy stopped Edward and these two or three other men were standing on the righthand side of the road. I did not hear anyone speak to Joe before he hollered. When the buggy stopped they were on the righthand side of the road. I don't know where Pablo came from, but I saw Edward standing there on the righthand side of the road. When Joe got out he never did anything but holler, and just hollered one time. I didn't see anything in his hand at that time; neither of us had anything in our hands at that time. Neither of us had a pistol. Edward was about three steps from the buggy when it stopped. When Joe got out of the buggy he walked around to the back of the buggy, and Edward was still standing off from the buggy. Joe was standing back of the buggy wheel and this fellow shot him; Ed shot him. At the time he was shot he was standing back of the buggy by one of the hind wheels. He was standing on the righthand side of the hind wheel."

Felipe Villalobos testified: "I said that I didn't see the first two shots. I was off from them about twenty-five yards. There were a few trees around there. After the shots were made I found Joe, the deceased, lying there on the ground. As soon as those shots were fired I went up where I heard the first two shots. There were a good many people there, but I couldn't name any of them at all. A good many of them came after I got there. Joe was still alive when I got there; he lived about an hour and a half or two hours; I was present when he died. I don't know where Christoval Sosa was at the time of the shots being fired. I went down there where the shots were fired and then found Joe shot and the crowd of other Mexicans there."

Christoval Sosa testified: "When I heard those shots what were fired there I was coming from the crowd where John Fosta was and heard two shots and Martia ran to see who it was that shot and I ran to the house and found that fellow Joe Castillo; when I got up there I says howdy, and I says, ``Who is that?' and he says, ``I am Castillo, and I am mighty sick; and I don't know what is the matter with me, but I have got a hurting in my stomach;' he says, ``I have got a shot and come and see me.' I went close to him and he told me to strike a match and see if he got shot or not. I struck a match and saw that he got shot right here in right side. I asked him who had shot him and he said Vela."

On cross-examination he testified: "Joe was shot in the right side; I saw the hole; I saw the blood; he was shot here, from the front here. And the shot and everything was there when I saw that. The blood was on the inside. I saw that blood and I found out that that was blood. That is what I am trying to say now, that there was no blood except where the bullet hole was."

Mattea Rocha testified he heard the shots, but did not see the shooting. He went to deceased as soon as he heard the shots, and learned that he was shot, when he tried to overtake defendant. That deceased died that night. He did not touch him until after he died, and did not examine him until after his death.

Felix Vela, a brother of defendant, testified he and defendant went to the place together in a buggy. That defendant left there right after the shooting, and he did not find out where he went to until he got home. That his brother did not tell him why he run off.

As stated in the original opinion, in this case, in the evidence there is no suggestion even that deceased died from any other cause, and in addition to the case of Thompson v. State, cited in the original opinion, this court held in the case of Scott v. State, 47 S.W. Rep., 531: "Appellant insists that the corpus delicti is not sufficiently proven, that is, that it is not shown by a sufficient certainty of proof that the wound inflicted was a mortal wound, and that deceased's death was occasioned thereby. The proof here shows that defendant cut deceased with the ax, and that it made, according to the witness, ``a big wound;' that deceased immediately staggered, and leaned against the house, then directly walked from the house a little piece and fell. He is only shown to have uttered one exclamation after defendant struck him the blow, to wit: ``What did you cut me with the ax for?' He had to be picked up and carried to his home, and a doctor was at once sent for, who attended him on the same day; he was in good health at the time he was cut by defendant; that he never got up from his bed; that he died at his home on the following Wednesday, three days thereafter. No question appears to have been made as to this matter on the trial of the cause. No doubt, if the question had been raised during the progress of the trial, and not apparently conceded, the proof would have been full upon this point, but it by no means follows that the proof here exhibited is not complete, establishing to the satisfaction of the jury the fact that the deceased came to his death on account of said wound. In our opinion, there was no error in the refusal of the court to entertain a motion for a new trial on this ground."

As said in the Scott case in the introduction of the evidence, this did not appear to be a contested issue, and in accordance with these decisions we hold that, inasmuch as it is positively testified that defendant shot deceased and he died in an hour or so, and that the only cause suggested by the record as the cause of his death was the wound in the stomach, the corpus delicti is sufficiently proven. We have read the authorities cited by appellant, and in each of them there was in the evidence some suggestion that the deceased might have died from other causes. And as in this case, the direct testimony as copied above, showed that defendant fired the shot that caused the death of deceased, there was no necessity to charge on circumstantial evidence. The court submitted the issue, under a proper charge, whether or not the death was caused by the shot fired by defendant, and we do not feel inclined to overrule the Scott and Thompson cases, but think they are correct in their holding.

Appellant insists that we should consider his eighth assignment of error, in which complaint is made in regard to the charge on murder in the second degree. No such ground was assigned in the motion for a new trial, no complaint made of the charge in this respect in the trial court, and we can not consider errors in the charge assigned for the first time in this court.

All the matters complained of in the motion for a new trial were passed on the original opinion, and such matters as were assigned in the brief which have no basis in the motion for a new trial, were not then and can not now be considered by us without overruling an unbroken line of decisions in this court.

The motion for rehearing is overruled.

Overrruled.