Cortez v. State

Decision Date15 January 1902
Citation66 S.W. 453
PartiesCORTEZ v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Gonzales county; M. Kennon, Judge.

Gregorio Cortez was convicted of murder, and appeals. Reversed.

B. R. Abernathy, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 15 years.

It appears from the statement of facts that appellant, a few days before the alleged killing, in Gonzales county, had killed the sheriff of Karnes county, and had fled. Sheriff Glover, of Gonzales county, with a posse, was searching for appellant in the latter county. On their way to the place of one Henry Schnabel they met him, and he returned with them to the house of Martin Roblero, a Mexican, arriving about 8 o'clock at night. They approached the house from the north and rear. Sheriff Glover and Crispino Alcantar, a deputy sheriff, went around the house on the east side, and the other members of the posse, Swift, Howard, Schnabel, Karnstadt, and Harper, went around on the west side of the house. Almost immediately after they approached the house the firing commenced. The sheriff and his deputies fired a number of shots, and some of the Mexicans at the house returned the fire. Several of the state's witnesses say that when the sheriff approached the house he accosted Martin Roblero, who was at the northeast corner. Davis testified that he said, "Hello, Martin; this is the sheriff of Gonzales county. Where is Bonifacio?" (Bonifacio being the son of Martin Roblero, and accused of theft.) Karnstadt testified that he said, "Hello, Martin; I am the sheriff of Gonzales county." Martin Roblero testified that he merely said, "Howdy, Martin," and immediately rode on around the house. The testimony indicates that as soon as Glover passed the southeast corner of the house a man on the steps at the front of the house began firing, and that he and the sheriff continued firing at each other until the sheriff fell from his horse mortally wounded. The testimony also indicates that, about the same time the firing began on the south and west of the house, some firing came from the house; that Schnabel, deceased, was killed during this firing, near the barn, which was west from the house about 20 yards. The plat herewith attached shows the situation of the house and the immediate environments, indicating where the sheriff was killed, and also where Schnabel, deceased, was killed:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The testimony indicates that when the posse approached the house Martin Roblero and appellant were at or near the northeast corner of the house, appellant having arrived at the house only a short time previously, and it is suggested that he must have gone from that point around the east side of the house toward the south; but whether it was he who had the duel with the sheriff, and finally shot him, is not made clear. From the record it appears there were two other men (Mexicans) at the house besides appellant, to wit, Bonifacio (the son of Roblero), and a low, heavy-set, dark Mexican. What part they took in the fight is not made manifest. As to who killed Schnabel is one of the important questions in the case. But, according to the uncontradicted testimony, whoever killed him must have been very close, as his head near the wound was powder burned, and the party who inflicted the wound must have stood within five or six feet of him.

S. T. Davis, a deputy sheriff, testified that the last time he saw Schnabel he was on horseback, about 15 steps from the house. Harper and Swift were there. Swift was at the back door; there had already been firing from the front of the house; that as he passed the house he saw a man run in the direction of the creek; that he told him to hold up; that the man never spoke, but fired at him, and they ran around a tree several times, firing at each other; that the man evidently had on shoes, as he saw shoe tracks around the tree the next morning. He does not suggest that this was defendant.

Swift says that he got off his horse, and ran in the back door; that the last he saw of Glover he was on the east side of the house, on horseback, and Alcantar, who had gotten off his horse, was behind him on foot. The first shots he heard were fired as he stepped in the back door. Martin Roblero went in the house in front of him, and when he got in the back door the shooting began at the front steps. While he was standing in the back door two men were running back and forward, and he did not like their maneuvers, and a man came running in the room where he was, and he shot at him and he fell. Another man ran in, and a woman came in between said party and witness, and he could not shoot again. He arrested these two men, and they are now in jail. He found in the house one single-barrel shotgun, one Winchester, and three pistols. The guns were loaded; the pistols were not. None of them had been used that night.

Harper, another witness for state, testified as did the others with reference to approaching the house and the direction the parties took. He further stated that when he got to the southwest corner of the pen he got off his horse, and walked up about halfway of the south line of the fence of the pen, between it and the barn where Schnabel was killed. The first firing he heard sounded near the southeast corner of the house. There was a light in the house, and firing in the house, and witness fired in at the window. He saw Schnabel off his horse twice, from the light of the window. He passed in and out of the light, near the southwest corner of the house. Directly he saw Schnabel at the barn, heard a shot right at him, heard him groan, and saw him fall. He was within 10 or 12 steps from witness. On cross-examination, witness admitted that he may have said that night he saw the Mexican woman shoot Schnabel from the window, and that he (witness) shot her; that was his theory that night; that he did not think he could have shot Schnabel, as he shot into the window; that he had a Winchester, and shot twice at the window; that he did not think it possible that he might have shot Schnabel, as he shot in the window.

Howard testified substantially that the posse rushed up to the house in a run; that Glover accosted Martin Roblero, saying, "Hello, Martin; where is Bonifacio?" that Martin made some answer in Spanish; Glover did not speak, but rushed on around toward the southeast corner of the house, about 10 or 12 steps from the house; that he stopped on the north side of the house; that the first shooting came from the front of the house, and heavy firing from near the southeast corner; that he could not see the shots from where he was, but could tell from the flashes; that he saw Schnabel after he got around on the west side of the house; first saw him on horseback by the light from the window in the house; then saw him two or three times near the south window, on the west side. This witness also testified on cross-examination that shortly after the shooting he heard Harper, one of the posse, say that a woman who was wounded shot Schnabel from the window of the house; that he saw her when she shot Schnabel, and that he (Harper) shot the woman; that Harper told him he thought the body southwest of the house, near the barn, was Schnabel. He did not say that he knew it was Schnabel.

This is about all the testimony that bears on the identity of the party who may have shot Henry Schnabel, except the confession of appellant, which is, in effect, that defendant said he got to Martin Roblero's house between sundown and dark; that he went into the house, and asked for some water, and they gave him a cup of coffee; that after drinking the coffee he pulled off his shoes, as his feet hurt; he asked for Martin, and they told him he had gone hunting; that he walked to the back door, and saw Martin coming; that he told Martin he wanted to speak with him, and that Martin took him around on the east side of the house, between the corner and the chimney; that it was dark; that he and Martin talked a short while, when the posse came up in a gallop, and shot off their pistols; that defendant then ran, shooting as he ran, at the head man, and ran by the barn, shooting back; that he did not know whether or not he had shot anybody; that he stayed all night in a field, and went back the next morning and got his shoes. Defendant said he fired two or three shots in retreating. On cross-examination, the witness said that instead of "posse," as stated by him in direct examination, defendant had used words meaning assaulting party, and not posse.

It may be stated here that the testimony showed that the posse were really in pursuit of appellant to arrest him for the killing of Sheriff Morris in Karnes county. They had no warrant, and there is testimony tending to show they had no opportunity to get a warrant. However, appellant controverts this. It may also be remarked that there is no testimony tending to show any preconcert or conspiracy on the part of the other Mexicans who were at the house to aid appellant in resisting an arrest. The testimony shows that he had only arrived at the house a very short time before the posse came up, and there is no evidence that appellant saw or had opportunity to see either Bonifacio or the heavy-set swarthy Mexican who was seen passing by one of the witnesses.

This is a sufficient presentation of the case in order to discuss the questions raised by appellant's assignments of error.

Appellant assigns as error the action of the court in overruling his motion for change of venue. That matter, however, cannot be considered, inasmuch as the bill of exceptions filed in term time does not embrace the statement of facts; the statement of facts being filed in connection with the statement of facts in the case, after...

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