Rueda v. State , 101 Tex. Crim. 651 ( 1925 )

The appellant, Manuel Villareal, Jose Carrasco and Alejo Menjarez were indicted jointly in the district court of El Paso county for murdering William Meers by shooting him with a pistol; appellant was convicted and his punishment assessed at death.

The record in this case briefly stated, shows the facts to be that the deceased, Meers, W. L. Laird, and C. A. Bitticks and Geo. H. Reed, started from the American Trust and Savings Bank in El Paso to near what is known as the Van Noy building with about fifteen thousand dollars with which to pay off the checks of G. H. S. A., railroad hands, as had been the custom of said bank for many months prior thereto. The evidence of the State as shown by the record is that the defendant and five other parties, one of whom was named Carrasco formed a conspiracy to take the money in question and rob the parties thereof. In the testimony there is some conflict as to how many parties were in the bandit bunch, as some of the testimony tends to show that there were four and some six. Carrasco had formerly worked for the railroad company and knew of the custom as to paying the railroad hands in the manner above mentioned by the bank. The parties with the money went from the bank to the Van Noy building in an automobile and when they had left the automobile and started into said building with the money, one of the parties in the holdup, denominated in the record, as a bandit, threw his pistol down on Laird, the man with the money, and it was fired and immediately the fight opened up between the parties in the car and the said named bandits, in which Meers and a Mexican by the name of Lopez, were killed, Bittick and Reed wounded and the appellant and Carrasco were wounded by being shot in their legs. The money was recovered at or near the place where it was dropped and the alleged bandits fled from the scene of action. This is a sufficient rendition of the facts as stated in the record as a preface for the discussion of the points in question.

In bill of exception No. 1, complaint is made to the ruling of the court in not trying the appellant first on a motion to sever, instead of his codefendant Carrasco; the bill shows that the appellant and his attorneys and the attorneys for said Carrasco had agreed in writing that appellant be tried first. When the cases were called for trial, it appears that said motion for severance was presented and the Court stated he had been informed by the district attorney that appellant desired to be tried after Carrasco instead of being tried first and inquired of the defendant if such was his desire and if it were that he would pass his case until after the trial of Carrasco to all of which the appellant agreed and said try Carrasco first then. The contention of appellant in this instance is that the court exceeded his authority under Art. 728, C. C. P., in not obeying the written agreement and in not permitting the appellant to be tried first. We are unable to agree with this contention and believe that if appellant, agreed to it as the bill shows, to have Carrasco tried first, regardless of said written agreement, that no one could complain at the action of the court unless it be Carrasco. In any event we fail to see any injury done to the defendant in this instance.

In bill No. 3, complaint is made to the action of the court in permitting the State to place pistols, clothes, bullets, and cartridges on a table in view of the jury that were contended by the State to have been used by the defendants in the attempted holdup and attempted robbery before they had been identified and introduced in evidence. The qualification made by the court to this bill shows that each and all of the above said articles, were dug up and introduced in evidence. We fail to see any error in the action of the court in this instance, because if said articles were in view of the jury and afterwards introduced in evidence and exhibited to them, it certainly could not be harmful to the defendant, as the jury had full view of all of said articles complained of, and we are unable to conceive how there could be any difference in bringing them in one at the time and introducing them in evidence, or in bringing them all in at once and afterwards admitting them. The effect appears to us to be the same and we overrule this contention.

In bill No. 4, complaint is made to the action of the court in permitting the State to prove by the witness, Maria Jesus Garcia, that on the day of the holdup and alleged attempted robbery, that she heard about the attempted holdup and the trouble and on said day before she heard of same, that Manuel Villareal, her brother and Alejo Minjarez, brought a wounded man to her house and that she learned his name to be Agapito Rueda, the man that the officers afterwards came and arrested and she noticed blood on his leg and that the said defendant told her that he was in the holdup and he was one with her brother and that he was in the holdup with Manuel and she further testified to having turned over his hat and clothing to the officers. The objection being to said testimony that it was prejudicial to the rights of the defendant and not legal evidence against him and was permitting the State to give hearsay evidence of the identity of the defendant. It appears from the record that the holdup took place just before noon and shortly after on the same day the above-named parties carried the defendant into the house of said witness in his crippled condition and left him there where he was arrested the following day by the officers. We are of the opinion that the court committed no error in admitting this testimony. That the State's witnesses identified the defendant as being one of the parties in the holdup and the State's testimony tended to show that the State's witness Bittick in shooting at the alleged bandits appeared to have crippled a couple of them in their legs, from their movements, and the admission of the defendant to said witness of his connection and participation in the attempted holdup made the testimony admissible beyond question in our opinion and in view of the testimony in this case when the codefendant, Carrasco, was arrested in the vicinity of the home of the State's witness where the defendant was left, and that he was shot in the legs, and the further testimony of the State's witness showing that there was a Dodge car in that vicinity with bullet holes through it and blood in it and that the car that the bandits were using was a Dodge car and was seen to leave the place of the holdup with three or four of the participants of the attempted holdup in it moving at a rapid rate and also four parties about that time were seen driving fast in a car going in the direction of where said parties were afterwards arrested and where said car was found, dressed in a similar manner to that in which the alleged bandits were dressed, in our opinion makes said testimony clearly admissible and not hearsay.

There is objection urged in bill of exception No. 5, to the testimony of the State's witness, Stowe, to the effect that he saw the codefendant, Carrasco, down at a certain house, No. 607 1/2, crippled in his right leg, to the effect that the leg was shattered and that they took him to the doctor and had his leg dressed and sent him to the hospital and he saw the defendant the next day and the Dodge automobile in question, the house of Garcia in the vicinity of where he had seen Carrasco and to the effect that he found him with a shattered leg with a bullet above the knee which he had the doctor to dress and sent him to the hospital; and further testified to having taken out of the pocket of said Carrasco a forty-five automatic, cartridge to all of which said testimony appellant's counsel objected to the matters as effecting the arrest of the codefendant Carrasco because he had been previously tried and the death penalty assessed and which would lead the jury to believe that the defendant was connected with said Carrasco, in the commission of said alleged offense and that same would serve to identify the defendant as acting with said Carrasco. We think the court committed no error in admitting this testimony because the State's testimony clearly showed that the appellant and said Carrasco were on the scene of the alleged holdup and the place of the homicide, participating jointly therein and attempting to effect the alleged robbery, and the confession of said Carrasco as shown by the record was introduced in this case by the appellant's counsel wherein the said Carrasco admitted and confessed to being in the alleged holdup and participating therein. This being the case there could be no possible error committed, besides we clearly think this testimony was admissible in showing circumstances connecting the defendant and each of them with the commission of the offense charged against them. In objecting to this testimony, and similar testimony herein discussed, the appellant urges the objection that if any conspiracy was ever entered into, in this case, said matters complained of took place subsequent to the alleged commission of the offense. In the case of Arlington v. State,263 S.W. 593, this court held that as a general rule the acts and declarations of a co-conspirator occurring subsequent to the commission of the offense should not be received against the accused on trial, but an exception to that rule obtains where it is shown "that such conspirator is found in possession of the fruits of the crime or the weapons or instruments with which it is committed" citing Branch's P. C., Sec. 695. And in said case it is further stated "the possession of the weapons or instruments used in committing the robbery or any of the property obtained by Whalen would tend to incriminate him and it appearing from the direct evidence that appellant acted with Whalen, the circumstances mentioned as corroborative of the direct evidence pointing to the guilt of the appellant" (citing Pierson v. State, 18 Tex. App. 561[18 Tex. Crim. 561]; Williams v. State,88 Tex. Crim. 96); and further stated "the evidence introduced showing the association of the appellant and Whalen both before and after the offense was properly received on the issue of the appellant's identity." This case, together with the citation in Branch's P. C., Sec. 695, wherein there are many authorities cited, conclusively holds against the contention of the appellant, wherein he object to the finding of the cartridges in the possession of Carrasco and in describing the character of wounds appellant and Carrasco had received and the condition of the appellant and their clothing. What we have said in this connection also applies to Bills 7, 8, 9 and 11.

In Bill No. 6, complaint is made to the action of the district attorney in stating to the court in the presence and hearing of he jury, "If we could show these two parties were acting together, which we have, we could show the flight of either party afterwards." It appears from the bill that this argument took place when the State's witness, Stowe, was upon the stand testifying, to which the appellant objected on the grounds that it was inflammatory and improper and would tend to prejudice the rights of the defendant. The confession introduced by appellant, made by his codefendant, Carrasco, shows itself that the parties named by him, including himself, but not appellant, left the scene of the alleged holdup in the car rapidly; and the testimony of the State's witness shows that said car was driven away rapidly and was shortly afterwards seen with four Mexicans in it driving fast, which suited the description of the parties described at the scene of the alleged holdup, which we take it would show that they had taken flight from the scene of the trouble, and that appellant participated in the holdup and left with the others under such circumstances; said bill fails to show any error in our judgment from the remarks of said district attorney. These remarks were made to the court, however, in arguing the question and not to the jury and under such circumstances, even if the evidence didn't warrant the statement, it can hardly be supposed that the jury would take arguments and statements to the court, under such circumstances, as evidence in the case.

Bill of exception No. 10, complains of the action of the court in permitting the State's witness, Quevo, to testify to having seen Carrasco prior to the date of the alleged holdup, have his pay check cashed by the bank officials at the place in question, because it is contended by appellant that it is not shown that he knew anything about or was familiar with such facts. We fail to see any error in this particular and in our view of the case, it would be wholly immaterial whether the defendant knew that the bank had been in the habit of paying checks at the place in question and in the manner stated or not, if he participated in the holdup at the time in question.

Bills 13, 14, 15, 16 and 17, complain of the admission of the confession of the appellant over his objection and because it is contended that same was not shown to be voluntarily made and because the court refused to permit the appellant to interrogate the interpreter and stenographer who were present at the time said confession was made to the district attorney in the absence of the jury. We have carefully considered these bills and the interpreter, Aldrete, testified that the defendant stated that he desired to make the statement and that he properly translated same to the stenographer in the presence of the district attorney, Vowell, and that said stenographer prepared said statement and then before it was read to the defendant, that said district attorney warned him and it was explained to him that he did not have to sign same and that said statement as read to him showed that whatever he stated could be used against him upon the trial for the offense with which he stood charged and that after same had been read over to him he, defendant, had a couple of changes made and then signed same wherein he confessed to his part of participating in the alleged holdup but denied having a pistol, but contended that he was to cut the wires of the automobile with a knife. We fail to see any error in the admission of this testimony and do not believe that the trial court committed any error in the particular complained of. The witness for the State, Garcia, having testified that appellant admitted being in the holdup to her and would in our opinion render the confession made by the appellant harmless, if there was any error in admitting same by the court which we do not admit. Art. 810, C. C. P., does not require the interpreter to be sworn nor the confession to be sworn to. The interpreter swore that he properly interpreted and translated the statement of the appellant from Spanish into English and we think this was sufficient. It is also contended by the appellant that the court erred in not permitting him to interrogate the State's witnesses relative to said confession in the absence of the jury and forced him thereby to inquire into the statement of the appellant to the effect that he served a term in the penitentiary in Sana Fe. We cannot agree with the appellant in this contention. If the court refused to allow him the privilege to interrogate said witnesses out of the hearing of the jury it was his privilege to take his bill and not take chances on results and of his own volition go into the matters before the jury, and prove himself that the defendant made such statements to the interpreter. The confession introduced in evidence by the State, did not contain any statement to that effect neither did the bill show that said interpreter, or said stenographer, or the district attorney refused to inform the appellant's counsel as to what statements the appellant had made concerning the matters inquired about; and when the appellant's counsel went into this matter and developed those facts before the jury it occurs to us that he did so at his own peril, and should not be allowed to complain thereafter.

It is contended in Bill No. 18, that the court erred in permitting the district attorney to interrogate the witness, Aldrete, as to the conversation relative to defendant serving the term in the penitentiary which was brought out by the appellant's counsel at a conversation which is shown to have taken place in jail at another and different time than the time of the confession in question. The court in qualifying this bill states that appellant's counsel had asked the witness, Aldrete, as to statements made by the defendant while in jail and in another and different conversation than the one had in the district attorney's office and he asked the witness Aldrete this question: "you say that at the time this alleged confession was made this man did not tell you about having been in the penitentiary at Santa Fe, that he went up for three years serving twenty-seven months and was deported through Laredo and had only been in Juarez two or three days when he was arrested. No, sir, not in that office." That this matter having been introduced by the defendant the court believed that the State was entitled to ascertain where Aldrete had obtained such information and moreover the defendant had elicited this answer from Aldrete without objection. The said witness stated, "No, sir, he didn't state that that afternoon, he told me that in the jail when we were there before." With this qualification to the bill showing that the defendant brought out those matters himself, we fail to see any error in permitting the State to then ask the witness where and when and what was said in said conversation and concerning same. Art. 811, C. C. P., states when part of conversation is given in evidence by one party, the whole may be inquired into by the other on the same subject.

In bill No. 19, complaint is made to the assistant district attorney in his argument to the jury in which he stated "what does the defendant say about this", and began to read from the confession made by the defendant. The contention of the appellant is that it was a reference to the failure upon defendant's part to testify. The court in qualifying this bill explains that immediately upon the asking the question as above stated, the said attorney began reading from the confession. We cannot see how this statement as shown by this bill could possibly refer to the failure of the defendant to testify.

Bill of exceptions 20, complains at the argument of the district attorney to the jury in which he used the following language: "If you didn't want all this artillery presented here before the jury, why did you and all these other bandits carry it up there," because it is contended that it is inflammatory and prejudicial to the rights of the defendant. There is no question from the record but what the defendant and codefendants had pistols on the scene of the homicide and we are unable to see how this kind of an argument was prejudicial to the appellant. In the brief appellant contends that it referred to the attorneys as also being a bandit. We are unable to see how the jury could have been misled by such remarks as there was no evidence tending to show that they, the attorneys for appellants, were connected with this matter in any particular and even though the statement bears that construction, it certainly could not have influenced the verdict of the jury in any way.

Appellant contends, in bill 12, that the court should have peremptorily instructed a verdict of not guilty and that the evidence is insufficient to warrant a conviction. The testimony in this case shows upon the part of the State that the appellant was present, participating in the shooting wherein there were two persons killed and that he confessed to it to the witness, Garcia, and all the facts and circumstances go to show outside of the positive proof and his confession to witness Garcia that he was one of the participants in the attempted robbery, and that he was found wounded immediately thereafter, in the house of one of his alleged conspirator's sister, outside of his own confession to the district attorney admitting his participation in the alleged holdup, was entirely sufficient basis upon which to predicate a verdict of guilty in this case. The defendant failed to testify, and only placed two witnesses upon the stand who testified that he was not in the bandit car at the scene of the homicide and in effect that he was not there, this of course only raised an issue for the jury to pass upon, and for them to decide whether or not they would believe this testimony or that of the State to the contrary, and which the jury, we think, properly decided against the appellant. This court in the companion case of Carrasco v. State, 271 S.W. 155, held that the evidence was sufficient. After a careful examination of all the appellant's bills and of the entire record, we are forced to the conclusion that the record fails to show any error in the trial of this case and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.