Gonzales v. State ( 1914 )

In his motion for rehearing appellant presents but some of the same questions originally raised, and others not mentioned specially in the opinion heretofore. We will discuss in this opinion such of these as we deem necessary.

In discussing his bills 49, 58, 59 and 62 we stated he made no objection when the court had the eleven other defendants brought into court for the purpose of identification of the four who did the actual killing of Ortiz, as claimed by the State's witness Buck. He now calls our attention to the fact that he did object to their being brought in, as shown by his bill No. 45. We find that he did object to said parties being brought into the courtroom, and this court was mistaken in the original opinion in saying he did not object. His objections, shown by bill 45, are: "We do not care to bring these parties in here and have him identify them in the trial of this defendant. We do not see that it is material; it would just go to detract the minds of the jury from this trial and we do not think it advisable." The point has been expressly decided against appellant in McIver v. State, 37 S.W. Rep., 745; Benson v. State, 69 S.W. Rep., 165. So that this court's incorrectly stating that he made no objection, did not and could not affect nor change the decision of the question. Besides, the bringing in the parties resulted to his advantage decidedly, because Buck made a mistake at first in the identification of one of the parties, as shown in the original opinion.

He also specially calls our attention to his bill of exceptions No. 13, wherein it is shown that he objected to the charge of the court, because it "failed and omitted to instruct the jury distinctly for what purpose they should consider the evidence of Gardner, White, Allen, Knaggs, Wilcox, Barnard, Boynton, Decker, Dickens and Campbell," claiming the evidence of these witnesses "did not establish the corpus delicti and was not offered for such purpose, nor to prove defendant committed the offense, and that the law required that such evidence be limited in the charge and that the court's charge should state for what purpose such evidence had been admitted and for what purposes the jury may consider it." The testimony of several of these witnesses was very material to establish many circumstances and facts which tended to make the case against appellant. The testimony of others was for bolstering the testimony of Buck as to the identity of appellant as one of the four who actually killed deceased. It would have been improper for the court to have given any such charge as this bill points out. Besides, to have called especial attention to the supporting testimony of Buck would have been on the weight of the evidence and against appellant. His objections were too general to specifically call the court's attention to any charge applicable to the testimony of these respective witnesses.

He also calls our attention to his bill of exceptions No. 5 wherein he complains of this language of the district attorney: "That defendant, Jesus Gonzales, was a member of the Zapata faction in Mexico, whose principles were murder, rapine and plunder," used in argument. The court, in allowing the bill, thus qualified it:

"A red flag with white lettering on it was introduced in evidence by the State, and defendant, while on the stand, identified it as the flag of the Liberal party of Mexico, his political party in Mexico. The district attorney stated the following: ``Was he fighting for Huerta? No, because the flag of Huerta is the flag of the Mexican Republic. Was he fighting for Carranza? No, because the flag of Carranza is the tri-color of Mexico. He was fighting for Zapata, the leader of the Partido Liberal in Mexico, the flag of murder, rapine, and plunder.' This remark was made in answer to argument of the attorneys of the defendant as follows: Judge Earnest's speech was devoted exclusively to a historical sketch of the conditions of the Mexican people, from the time of Cortez, recounting their oppressed conditions from the time of the Spanish, and Judge Earnest did not discuss the evidence. Earnest also spoke about the French Revolution. The speech of Mr. Smith referred to the condition of the Mexican people and their struggle for liberty comparing the defendant's to other revolutions for liberty, mentioned the battle of San Jacinto among other things. Mr. Strawn also spoke at length about the present condition in Mexico and defended the Mexicans in the present struggle against Huerta, as a tyrant. And the district attorney stated that the red flag was the flag of Zapata in answer to the argument of Mr. Smith, who, in his speech, asked the question that when in history could it be shown that the red flag had ever been used for a bad purpose?" The bill as qualified shows no error.

In this connection we call attention to what the principles of the party, which appellant joined and was attempting to carry out, were, and the extract from the paper "Regeneracion" a part of which is copied in the original opinion.

The motion is overruled.

Overruled.