Conde v. State

I concur in that portion of the opinion holding the corpus delicti is not sufficiently proved. I dissent from that part of the opinion holding the trial court should have limited in his charge the effect of the testimony showing that Estevan Conde was in possession of deceased's sash and that Gregoria Conde, in the presence of Estevan, sold deceased's gun. Both of these facts occurred just after deceased's death and was evidence to prove the main fact and not a collateral issue. The same evidence relied upon to connect Ruperto Conde with the death of deceased was relied on to connect Estevan and Gregoria with said death. The possession of the sash by Estevan and of the gun by Gregoria were not acts, declarations or conduct of conspirators transpiring subsequent to the crime, but were physical facts, independent and inculpatory in their nature, and were fruits of the crime. The sash and gun were property of the deceased and in his possession just prior to his death. Pierson v. State, 18 Tex.Crim. App., 524; Clark v. State, 28 Tex.Crim. App., 189; Conde v. State, 33 Tex.Crim. Rep.; Pace v. State, 20 S.W. Rep., 762. This evidence was as cogent against Ruperto as against either Estevan or Gregoria and was pertinent to prove the main fact and not a collateral issue. Same authorities. Foster v. State, 32 Tex.Crim. Rep.. I further dissent from that portion of the opinion overruling Fuller's case, 30 Tex.Crim. App., 559. I cannot add anything to the reasoning of Judge White in that case, and adopt it as the reasons for my dissent on this question.

JUDGE HURT, Presiding Judge, concurs with the opinion of Judge Henderson in regard to the first two propositions, but not as to the latter.