Marta and Bonado v. State

193 S.W. 323, 81 Tex. Crim. 135, 1916 Tex. Crim. App. LEXIS 401

• Court: Court of Criminal Appeals of Texas
• Decided: December 27, 1916
• Docket: No. 4200.
• Status: Published

Opinions

Appellants were jointly tried and convicted of the murder of Eugene Smith, their punishment being assessed at death.

Mr. Smith came to Austin on Saturday, October 2, 1915, bringing some cotton seed and two bales of cotton on his wagon, which he sold on that day. On his way home that night he was shot in the head twice, one ball entering just at the back of the ear, and his body thrown from the wagon. The State's contention is that he was murdered in the perpetration of robbery. The next morning appellants and others were arrested while the sheriff's force was investigating the murder. All arrested were released after the investigation except the appellants, and they were indicted by the grand jury, the indictment being returned on December 24, 1915.

This is a case in which the State relies on circumstantial evidence, no witness for the State seeing the fatal shots fired. The State by its evidence would have appellants see Mr. Smith bringing the cotton seed and cotton to Austin that day, and see him going out of the city towards home. Mr. Smith stopped at John Miller's to pay for some potatoes, and that appellants came in the store while Mr. Smith was there and attempted to purchase some cheese and crackers but had no money. Mr. Smith is then traced to Gus Koehn's, where he stopped and paid a debt he was owing, and made a small purchase. This was introduced as fixing the time Mr. Smith left the city and that appellants were aware of the fact, the time being fixed in the neighborhood of 9 o'clock at night. Hunter Hill's place is some two miles farther on the road Mr. Smith would travel going home, and Will Eppright says he left Hill's at 9:30 (closing time) and started towards Austin; that he met Mr. Smith on his road home. This was the last time Smith was seen before being shot, his body being found by the side of the road some distance farther on, just beyond Hill's place and Dick White's saloon and restaurant, some three miles from Austin. The exact distance beyond these places where the body was found is not shown by the record, but we would judge it was in the neighborhood of a half or three-quarters of a mile, judging by the map in the record. The body was discovered by four young men, Carl Lingren and others, who left Austin about 10 o'clock, and passed the body, discovering later the team loose, when they went on to Mr. Bergstrom's. They reported to him what they had seen. Mr. Bergstrom got a lantern and they all went back, catching the team and tying it; when they got to the body they did not recognize the man, he being so bloody. They telephoned Sheriff Matthews, who, with Deputy Sheriff Eugene Barbisch, drove out in an automobile, got the wounded man and brought him to the Seton Infirmary for such medical aid as could be administered. The sheriff and his deputy and others returned to the scene and waited for daylight to begin investigation; they discovered where the brake must have been thrown on the wagon, as the wheel dragged, and followed this dragged track, finding where blood had dripped on the ground; when they got to where the body had been thrown from the wagon the wheel again began to revolve, and about this place they discovered where two men had jumped from the wagon; they tracked the men to Gilbert's gin, finding a whole cigar and a stub; from this gin the tracks of the two men separated, Sheriff Matthews and others following the track that led to Littlepage's store, where appellant Bonada was found and arrested, he having blood on his clothing and hat. Mr. Gilbert and others followed the other track, and by information received, where appellant Juan Marta changed his clothing, found and arrested him. The State placed appellants in Miller's place when deceased was in the store; placed them at Hunter Hill's place at 9:30 o'clock, where they purchased beer and two cigars, leaving that place as the saloon closed. It then traced them to Dick White's after 9:30, where they were seen by several, the time of their departure from this place not being fixed absolutely certain. The other circumstances relied on by the State will be recited and discussed hereinafter in passing on the bills of exception.

The appellants both testified and both admit being at Miller's, and that they attempted to buy cheese but could not at that time find their money they say they had, and that Mr. Miller refused to sell them; they admit being at Hunter Hill's at 9:30, and that they purchased beer and two cigars; they admit going to Dick White's and going from there to Gilbert's gin, where they spent the night; they admit the cigar and stub found at this gin were the two cigars purchased at Hill's at 9:30; they admit getting up early the next morning and traveling the way the officers say they tracked them to the places where they were arrested. Marta denies any blood being on his clothing, and he gives as an excuse for changing clothes that he got his pantaloons wet in going through the cotton fields from dew. Bonada admits he had blood on his clothing, but explains it by saying his nose had bled on Saturday afternoon while he was in Austin. They admit they were constantly together from the time they left Austin until the next morning.

So a great many of the circumstances proven and relied on by the State became proven facts after the defendants had testified. That Bonada had blood on his clothing when arrested was not denied, but an explanation offered, which the State sought to prove untrue. This was one of the contested issues in the evidence. And while they admit traveling the road from Dick White's to Gilbert's gin and spending the night at the gin, they endeavor to prove that Smith had been murdered before they left Dick White's restaurant. On this issue the evidence is conflicting. Juan Laerma testified that he overtook appellants at a turn in the road near where the body was found and had a conversation with them; that they told him they were waiting for a wagon, and while talking to them, deceased, Mr. Smith, came driving along, when both appellants got in the rear of the wagon, and he galloped on off; that when he got a short distance he heard two shots but went on home. Appellants testify and admit they met Laerma about the place he says and had a conversation with him, but deny Mr. Smith came along; they say they and Laerma went on down the road, Laerma going on ahead; that they went on down the road and saw an object lying by the side of the road; that a buggy passed them, and then a wagon with negroes passed them; and they tried to get the negroes to let them ride; that they then met an automobile, and this is shown to be the automobile in which Mr. Bergstrom and others were traveling on the way back to the body of deceased.

It is thus seen that the conflict is, the State contends they were on the road waiting for Mr. Smith, got in his wagon and killed him, robbing him of his money; the appellants contend they did not leave Dick White's in time to have committed the offense, and when they passed along the road someone else had already slain Mr. Smith, as he was lying on the side of the road when they passed. This was a sharply contested issue.

When the State announced ready, appellants moved to continue the case on account of the absence of some half dozen witnesses. The attendance of all of them was secured, except Eugenio Rios. The testimony of this witness would be material to the defense of appellants, but cumulative of the testimony of other witnesses. As this is the first application, the fact the testimony was cumulative would not deprive appellants of the right to continue the case if they used diligence to secure his attendance, but we think the record discloses a lack of diligence. Appellants as hereinbefore stated were indicted December 24, 1915. No subpoena was issued for the witness until February 22, 1916, and the sheriff by his return on the process shows he could not find the witness in the county. This was but a short time before the case was set for trial. In the application they state, "that the witness Rios was a resident of Travis County during the fall of 1915, and so far as these defendants have been able to ascertain is still a resident of the county; that there are residing in Travis County and also in Bexar County, Texas, Mexicans by the name of Rios, and they believe if given until the next term of court they will be able to locate the witness." It is thus seen at the time of the trial appellants did not know the location of the witness; whether he was in Travis County or Bexar County, or at some other point. This information was too indefinite, and in the application it is not shown that appellants had used any diligence to definitely locate the witness; and in the motion for a new trial complaining that the court erred in this respect, it is still shown that the location of the witness was not known, and the court was put in possession of no fact which would or could reasonably lead the court to believe the witness could be found if the case was postponed. Under such circumstances, there was no error in overruling the motion. The term of court at which appellants were tried adjourned April 29th. Appellants in November of this year, and after the case was pending in this court and set for hearing, filed an affidavit stating that this witness had been located and to what he would testify. This affidavit can not be considered for any purpose. We must pass on the case on the record made in the trial court, and it is never permissible to supplement the record by ex parte affidavits on any issue except the jurisdiction of the court. They are authorized to be filed in no other instance.

After the motion for a continuance had been overruled and a portion of the jury selected and empaneled, appellants filed a joint motion "praying for a severance, and asked that the determination of which one of said defendants should be first tried be determined by the court or State's counsel." Severance when timely and legally demanded is a matter of right under our law, but this right was given only on named conditions. Article 727 provides that if severance is desired an affidavit shall be filed, in which the party applying therefor shall state that the evidence of his codefendant is material to his defense, and he verily believes that there is not sufficient evidence against the party whose evidence is desired to secure the conviction of such person. No such allegations were contained in the request for severance, and under such circumstances there was no error in overruling the application. In Shaw v. State, 39 Tex. Crim. 161, Judge Hurt says, in speaking for the court: "The statute requires appellant to state in his affidavit, as a matter of positive averment, that the testimony of his codefendant will be material to his defense. This was not done." And neither does the affidavit filed in this case so state.

There are bills of exception in the record complaining that the court permitted State's counsel to ask the witness Juan Laerma leading questions. After the witness testified to meeting the appellants in the road and having a conversation with them, the prosecuting attorney asked him, "What if anything did they (the defendants) say they were waiting for?" Witness answered, "He says waiting for a wagon." Counsel objected to the question as leading, when State's counsel replied that under a strict ruling the question might be leading, but the witness had a poor understanding of the English language. The court said under the circumstances he would permit leading questions to be propounded to the witness, and cited as authority for so holding the Jones case. This is a matter within the sound discretion of the trial court, and in the absence of any showing of abuse of this discretion no error is presented. The only reason stated is that there was an interpreter present in court. The court by referring appellant to the Jones case evidenced that he found that it was difficult for the witness to understand the English language, and under such circumstances permitting the State to ask questions of the character and kind above quoted presents no error. It is difficult to conceive that the question would suggest the answer desired. It may be said that it assumed the appellants were waiting for something, but the witness had already testified that he had ridden up to them standing in the road and spoke to them. See collation of authorities cited in Branch's Penal Code, page 90. And when this witness had testified that they said they were waiting for a wagon, and as deceased came driving along, they got in the rear of the wagon, and in a few moments he heard two shots, appellants moved to continue the case, alleging that they were surprised at the testimony of the witness. It is true that the witness admitted that in October, 1915, he had made a statement to appellants' counsel at variance with his testimony on the trial, and had made a statement at that time to counsel for appellants that would tend to support the testimony of appellants, yet it is made apparent by this record that before announcing ready for trial the witness had refused to talk to appellants' counsel, and the counsel had gotten the court to compel the witness to talk to them. That they used Mr. Rohrman as an inerpreter in talking to Laerma, and not only does Laerma testify he told Rohrman what he would testify to, but Rohrman himself testified: "As to whether it is not true that in Judge Love's office, after they brought Juan Laerma there, if he did not start out to tell me something and I said no, it is a lie, I will say that when I saw what he was going to tell I said he was a lie. I knew then he was a witness under the process of this court. With reference to whether I did not know that he was under instructions of this court to talk to counsel and tell what he knew and he started to tell it and I told him it was a lie, I will state he was telling two different tales. I knew he was brought here by the State as a witness and under the control of this court. I was acting as an interpreter for these gentlemen, defendant's counsel — I was interpreting the statement that he made last fall and he started to make to them through me as interpreter a statement different from that and I told him that was a lie — he was trying to tell what he was going to say here and he was varying from what he told me down in that field and varying from what he told here. I, knowing that he was a witness under the process and control and protection of this court, told him he was lying." Thus it is seen that if appellants' interpreter correctly interpreted to them what Laerma told him, when directed to talk to them by the court, they were made aware of what he would testify, and under such circumstances they can not claim surprise. Again, in the motion, they allege the name of no witness and no fact or circumstance by which they would in the future be more ready to meet this testimony than they were then in condition to meet it. When surprise at the testimony of a witness is relied on as a ground for continuance, the court must be put in possession of some fact or circumstance, where by granting time the person will be enabled to meet or at least minimize the force of the testimony. As no such allegations were contained in the motion made, there was no error in overruling the application. Davis v. State, 60 Tex. Crim. 620; Loveless v. State, 40 Tex.Crim. Rep., 44 S.W. Rep., 508; Williams v. State, 48 Tex.Crim. Rep..

The appellants objected to the question propounded to John Miller, "I will ask whether at the time they (the defendants) were in your place of business you observed any blood upon either of them," on the ground that it was leading. The setting or testimony accompanying such question is not given in the bill, but if we turn to the statement of facts we find that Mr. Miller had testified that appellants came into his place on Saturday night, and stated they desired to purchase some cheese and crackers; that he got it out for them, when appellant Bonada searched his pockets; that appellant Marta remarked, "Oh, you have got no money." That he was on one side of the counter and they on the other; that the building was lighted with electric lights, and they were not over three feet from him. A leading question is one which may be answered yes or no and which suggests the answer desired. If the question asked does not suggest the answer desired, it is not leading. Coates v. State, 20 Texas Crim. App., 19, and cases cited on page 90, Branch's Penal Code. The question asked could have been answered yes or no, it is true, but it could also have been answered that he did not notice, or half a dozen different ways, and it certainly was not so framed as to suggest to the witness the answer he should give. The fact he answered he did not observe blood on either of them, would not make the question leading. And after Hunter Hill had testified that when appellant was arrested on Sunday morning he had blood on his clothes, hat and shoes, and testified that appellants both were in Lush Flow's saloon the night before about 9:30 and had purchased beer and cigars that the place was lighted with three lamps, and other facts, to ask him if that blood they found on him Sunday morning was on him Saturday night when he was in the saloon, would not suggest the answer he should give to the question. Kennedy v. State, 19 Texas Crim. App., 618; McGrath v. State, 35 Tex.Crim. Rep..

It was not hearsay to permit the witness Laerma to testify that he pointed out to Sheriff Matthews and others the place where he said he saw appellants on the night of the homicide, and where he said appellants got in deceased's wagon. This was a witness testifying to facts within his knowledge and not to facts obtained from any other person. And it was not hearsay to permit Sheriff Matthews and others to testify that at this place was the point where they on the morning after the homicide noticed the wagon began to drag as if the brake had been thrown on. The sheriff was testifying to facts observed by him on the ground. And when the sheriff testified that he followed this "dragged track" to a given point and saw blood along the road until he got to where deceased lay, and there noticed the wheel began to revolve, and that at this point he observed "the first tracks of men, and they looked as if they were men jumping off of something," it would be but a shorthand rendering of the facts. The sheriff went on and testified how the heels dug in the ground and the track slipped, etc. Williams v. State, 60 Tex. Crim. 453; Graham v. State, 28 Texas Crim. App., 582, and cases cited in sec. 132, Branch's Ann. Penal Code. The same may be said as to the testimony of Eugene Barbisch as to the same matter. An opinion, so far as it consists of a statement of an effect produced on the mind becomes primary evidence and admissible whenever the condition of things is such that it can not be reproduced and made palpable in the concrete. Miller v. State, 18 Texas Crim. App., 232; sec. 131, Branch's Ann. Penal Code.

Appellant excepted to the court's charge "for the reason that the court failed to charge the jury that in considering the evidence of Juan Laerma they should consider the fact that he had made statements to defendants' attorneys totally at variance with his testimony on the stand, in determining the credibility of said witness and the weight to be given his testimony. Such a charge would have been on the weight to be given certain testimony. The State offered no witness in support of the testimony of the witness. The witness admitted he had made a different statement to counsel for appellants in October, 1915, and his reasons for so doing and his testimony on this trial. The weight to be given the testimony under such circumstances was a matter of argument and not a matter of law to be given in charge to the jury.

The other bills relate to the argument of Hon. John W. Hornsby, of counsel for the State. The first bill shows he said: "These defendants are as guilty as can be; in my opinion the evidence shows that these defendants are guilty of having foully assassinated Eugene Smith." The court promptly instructed the jury not to consider such remarks. If the evidence for the State presents the correct theory it was a "foul assassination," the ball entering the head behind the ear, plowing through his brain. No evidence suggests he was killed otherwise than by being shot from the rear, and the fact the attorney said it was his opinion they were guilty presents no reversible error, when the court instructed the jury not to consider such remark.

In the second bill it is shown "counsel for the State, John W. Hornsby, alluded to the fact that Rocindo Bonada, one of the defendants, while on the witness stand, testifying in his own behalf and after the direct examination and cross-examination had been concluded and he had been excused from the stand by both the State and defense, had stated to the interpreter that he, Rocindo Bonada, wished to make a further statement, and that defendants' attorneys had objected to his doing so, and argued same was a strong circumstance of guilt." The weight or strength to be given this argument might be a question about which minds differ, but the bill itself shows that he was commenting on an occurrence that took place during the trial, and correctly recited it, and only added, "it was a strong circumstance of guilt." The defendant had placed himself on the stand as a witness, and his testimony and conduct was a subject of criticism the same as any other witness. However, the court instructed the jury not to consider the argument.

In the next bill it is shown that "while arguing this cause before the jury and after the court had charged it, John W. Hornsby, of counsel for the State, stated to the jury that it was strong evidence of guilt that when defendants' attorneys had wanted to talk to the witness for the defense that they had declined to do so through the court interpreter, but that they, said attorneys, had insisted on taking a private interpreter for said purpose." Appellants excepted on the ground that the witnesses referred to were Bonada's wife and defendants themselves. From the record before us no such grounds of objection were valid, as in the record we have before us the only witness it shows that appellants' counsel called a private interpreter to communicate with was Juan Laerma, and this interpreter testified to facts himself that would authorize counsel to criticise his conduct as shown by the testimony of the witness Rohrman hereinbefore copied. However, the court promptly sustained objection to such argument and instructed the jury not to consider it.

The only other objection to that counsel's argument is that he said "the law books were full of and that he, Hornsby, had read hundreds of cases in which convictions had been secured on circumstantial evidence and affirmed by the higher courts in which the evidence was not nearly so strong as in this case." We suppose this argument was in reply to the argument of counsel, insisted on in this court, that the evidence is insufficient to sustain the conviction. This language was improper; however, the court reprimanded Judge Hornsby for this statement and instructed the jury to disregard it.

It is thus seen that all argument objected to was withdrawn and the jury instructed not to consider it in their deliberations. No written instructions were requested by appellants, and if the reprimand of Judge Fisher given to Judge Hornsby was not in strong enough language to remove any evil effects of the argument made, at the time he instructed the jury not to consider it, certainly appellants ought to have asked such additional instructions as were deemed necessary to remove the evil effects. The argument made is not of that inflammatory character as to authorize a reversal of the case, when the court withdrew it, instructed the jury not to consider it, and reprimanded counsel making the argument in the presence of the jury.

Sufficient of the evidence has been recited as we think to conclusively show such a state of facts as to authorize the jury to return a verdict of guilty. We do not deem it necessary to recapitulate it

The judgment is affirmed

Affirmed.

ON REHEARING. December 27, 1916.