Gomez v. State

Appellant was convicted of murder, and his punishment assessed at death.

March 29, 1913, appellant shot and killed Santos Mora at the Randado ranch in what was then Brooks County. The Legislature subsequently created a new county, Jim Hogg, and the place where the killing took place was included in the territorial limits of that county. When that county was organized the district judge of Brooks County transferred the indictment to Jim Hogg County. Appellant complains of this action of the court, and says he should have been tried in Brooks County. Mr. Bishop says, "By the common law crimes are local, to be prosecuted in the county of their commission; only in such county can the grand jury inquire into them. Even where a county is divided, a criminal act done before the division is to be prosecuted in the particular new county in which is the place of the offense. The offense is against the State; the trial is in the new county." This is the correct rule, and one followed by our courts. Hernandez v. State, 19 Texas Crim. App., 408; Weller v. State, 16 Texas Crim. App., 200; Nelson v. State, 1 Texas Crim. App., 41. The offense having been committed March 29th, the indictment returned May 27th, and the law creating Jim Hogg County July 1st, it was not only proper but incumbent on the court to transfer the case to Jim Hogg County as that county would have jurisdiction of the offense. And when the District Court of Jim Hogg County convened, if in the opinion of the trial judge that the facts connected with the commission of the offense had gained such wide notoriety that a trial alike fair and impartial to the accused and the State could not be had in that county, he was authorized to change the venue to Webb County. Article 626 of Code of Criminal Procedure.

The death penalty having been assessed in this case we can not understand the negligence manifested in the preparation of this record. The statement of facts bears no evidence that it was ever presented to the trial judge for his approval — at least, in the record before us the statement of facts has not been approved by him, and is not verified in a way that would authorize us to consider it. Lawrence v. State, 7 Texas Crim. App., 192; Bennett v. State, 16 Texas Crim. App., 236; Johnson v. State, 29 Tex. 492 [29 Tex. 492], and note 1169 White's Ann. Code of Criminal Procedure, and authorities there cited.

Mrs. Juana Chapa De Mora was permitted to detail the conversation she had and events that led up to the tragedy. This was res gestae of the transaction, and properly admitted in evidence.

Carmen Mora was permitted to testify that prior to the shooting her sister, Santos Mora, was in perfect health, and that her sister died in fourteen hours after being shot in the abdomen by appellant, and that her death was caused by this shot. The bill shows that all this testimony was objected to. Certainly all of it was admissible, unless it be that portion of it in which she stated her sister's death was caused by this shot, and in our opinion, under the circumstances of this case, the court did not err in permitting the witness to testify to that fact. Federico Gonzales had testified to material facts for the State, and the defendant, on cross-examination, had sought to discredit the witness by showing that he had testified at the examining trial, and attempted to show that he had been induced by another to testify as he had on this trial. On redirect examination he was permitted to say that what he had testified to on this trial was the truth. Appellant contends that was "bolstering up" the testimony of the witness. We hardly think the contention sound under the recitals of the bill, for if by the cross-examination of the witness the defendant had cast a cloud on the truth of the testimony of the witness, the witness stating it was the truth, would add no strength to it.

The statements made by Santos Mora and Andres Salinas were admissible both as dying declarations and as res gestae of the transaction. The statements were made only a few minutes after the shooting, and it is evident it was but the event speaking.

Neither McClelland, Vasquez nor Sprague were qualified jurors, and the court did not err in so holding. They were neither freeholders nor householders within contemplation of the law. A single man who remains with his father and mother, even though he pays them board, does not, because of that fact, become a householder. And neither is a single man a householder who merely rents a room from an occupant of the house.

As to Mr. Eistetter, if the court erred in refusing to sustain appellant's challenge for cause, he peremptorily challenged the juror, and as no objectionable juror was forced on appellant, this bill would present no error.

Appellant's wife was in attendance on court. The record shows she was present at the time of the homicide, but she was not called as a witness by appellant. The State could not introduce her, and the bill shows that in his argument the district attorney referred to the fact that she had not been introduced as a witness. This was permissible, and the bill presents no error.

No exceptions were taken to the charge of the court before it was read to the jury, and in the absence of a statement of facts we must presume that it fully presents all the issues made by the evidence had on the trial. The contention that there is now no law authorizing the infliction of the death penalty can not be sustained.

The judgment is affirmed.

Affirmed.

ON REHEARING. November 11, 1914.