Pena v. State

Appellant was given a penalty of five years for murder without malice and brings this appeal.

On the former trial appellant was given a penalty of three years in the penitentiary and upon appeal the judgment was reversed on account of an error in the court's charge. The case is reported in 151 S.W.2d 598.

The indictment in the case alleges the murder by appellant, who was a Mexican, of another Mexican named Hernandez. The facts of the case disclose that the deceased was named Lopez, but it is also in evidence that he was commonly known by two names, one being that alleged in the indictment and the other, Lopez.

The appeal brings for our consideration several bills of exception, the first complaining of the action of the court in refusing to charge that the appellant had the specific intent to kill. Such a charge is necessary under the facts of the case, but we think that considered as a whole, and particularly the language of paragraphs 11 and 12, the jury was sufficiently required to find that such intent existed. It is not essential to discuss definitely each of said paragraphs but it is sufficient to say that in presenting the subject the court based it on the finding "with intent to kill" and "with an intention to kill" etc., so that there can be no doubt that the jury was specifically so instructed.

Bills of Exception Nos. 2 and 3 complain of the language found in Paragraphs 16 and 17 of the court's charge, with the contention that the former paragraph is on the weight of the evidence and suggested to the jury that the appellant might have continued to cut the deceased after the deceased ceased to attack him. The latter complaint is that the court, in Paragraph 17 of the charge, failed to inform them that the situation must be viewed from the standpoint of the appellant at the very time the fatal wounds were inflicted.

There is no question raised by the appellant's testimony as to his having cut the deceased and that the wounds he thus inflicted were fatal. He claimed that he acted in self-defense. We find nothing from the evidence of a nature that could possibly have been emphasized to his injury by the court's charge in the language set out in the bill; and a like reasoning will apply to Bill of Exception No. 3. To the contrary, in each paragraph of the charge, the rights of the appellant seem to have been specifically taken care of. Neither the bills, the argument, nor the briefs call our attention to any harmful results following the language complained of, and the finding of the jury was for murder without malice. We are unable to sustain either bill.

What has been said of the foregoing will likewise dispose of Bill of Exception No. 4. We note from this bill that counsel says the court should have said in Paragraph 17 of the charge that "if the deceased was making or 'about to make' an attack," etc. If the evidence in the case raises the question requiring a charge on what he was "about" to do, we have been unable to find it. At the same time, appellant presented a special charge on the subject but made no such request in his special charge.

Bills of Exception Nos. 5 to 12, inclusive, pertain to the name of the deceased, which was given in the indictment as Esa Hernandez, while there is evidence in the case indicating rather strongly that his name was Tony Lopez. We note from the evidence that the witness, Homer Tolar, testified on redirect examination that the deceased went by two names, one Lopez and the other Hernandez. Tom Wallace also testified that the deceased went by the name of Hernandez in the City of Marlin. This being true, the court's procedure in submitting the matter was sufficient. The evidence in the case amply justified the verdict which the jury returned, and we find no error in the record requiring a reversal of the case.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.