Cabrera v. State

• Citation: 118 S.W. 1054
• Parties: CABRERA v. STATE.
• Decision Date: 03 February 1909
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

118 S.W. 1054

CABRERA v. STATE.

Court of Criminal Appeals of Texas.

February 3, 1909.

On Rehearing, May 12, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from Dstrict Court, De Witt County; James C. Wilson, Judge.

Alberto Cabrera was convicted of murder in the first degree, and he appeals. Affirmed.

R. B. Creager, A. I. Hudson, Lackey & Lewright, and J. L. George, for appellant. Davidson & Bailey, F. W. Seabury, J. I. Kleiber, Dist. Atty., and F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at life imprisonment in the penitentiary.

Between 12 and 1 o'clock at night on November 5, 1906, in Rio Grande City, in Starr county, Judge Stanley Welch, district judge of that district, was assassinated in his room. The house in which he slept consisted of two rooms. Judge Welch occupied one and the district attorney the other. The homicide occurred on the night preceding an election. Judge Welch was at said city holding court at the time. Appellant and Jose Sandoval approached the window of Judge Welch's room, where he was sleeping, and remained standing there, close together, side by side, for a short period of time. One of the two fired a shot into the house through the window where Judge Welch's body was found. He was shot from that point through the back. The evidence shows only one shot was fired in that neighborhood that night. The evidence shows that the wound that killed Judge Welch was fired from the window as indicated. Judge Welch's body was within four or five feet of the window, inside of the room, in the direction from which the shot was fired. Only one bullet hit the body. Cayetano Pena and his wife, Jesusa Gonzales de Pena, are the two witnesses who testified that they saw appellant and his codefendant fire the shot as above detailed. They furthermore testify they were sitting at their home, some 120 feet away from Judge Welch's room, and early in the night appellant and his codefendant passed by their house and they recognized them. Some time thereafter, while they were still sitting, one in the door, and the other on the bed looking out of the door, in the direction of Judge Welch's window, they saw appellant and his companion approach and fire the fatal shot. They then saw them run away hurriedly from the window. They swore positively that it was appellant and his codefendant. If the testimony of the witnesses is to be believed, as disclosed by this record, the motive for the killing was political, and appellant and his codefendant were the hired assassins of political enemies of Judge Welch, since there is nothing to suggest that appellant and his codefendant had any personal animus against the judge. No one knew that Judge Welch was killed until early the next morning, when the district attorney entered the room and found that he had been shot as suggested. Alarm was given, various parties gathered in, and after continued search appellant was some time subsequently arrested in old Mexico and brought back to this state on a proper requisition and tried for this homicide. The jury gave him murder in the first degree, with life imprisonment. Pena and his wife testified that, at the time that appellant and his codefendant passed their house, Judge Welch was sitting just inside of the east door of his room, and there was a light burning in the room. Appellant and his codefendant passed on, going to the north of the house in which witnesses lived, then turned to the right, and disappeared. Some time after these parties passed, Judge Welch's light went out, and his door was closed. About an hour after they passed the first time, the same two parties, coming from the same direction as before, walked up to the east window of the south room of Judge Welch's house and fired a shot. They did not know which fired the shot. There are other circumstances in the record that we do not deem necessary at this time to rehearse.

Appellant's first ground of his motion for a new trial complains that the court erred in failing to charge on circumstantial evidence. To support his contention he cites us to the following authorities: Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82; Guerrero v. State, 46 Tex. Cr. R. 445, 80 S. W. 1001; Trijo v. State, 45 Tex. Cr. R. 127, 74 S. W. 546; Poston v. State (Tex. Cr. R.) 35 S. W. 656; Leftwich v. State, 34 Tex. Cr. R. 489, 31 S. W. 385; Polanke v. State (Tex. Cr. R.) 28 S. W. 541; Montgomery v. State (Tex. Cr. App.) 20 S. W. 926; Deaton v. State (Tex. App.) 13 S. W. 1009; Puryear v. State, 28 Tex. App. 73, 11 S. W. 929; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 98, 69 L. R. A. 193. The case of Puryear v. State, supra, and other authorities noted by appellant do not sustain his contention. There is a long line of authorities in this state, holding that, where the defendant is in such juxtaposition to the crime committed as the facts in this case show, a charge upon circumstantial evidence is not required. The latest case that our attention has been called to, sustaining this modification, is the case of Dobbs v. State, 51 Tex. Cr. R. 630, 103 S. W. 918. In discussing the question as to whether the issue of circumstantial evidence was presented in that case, we used this language: "The state's testimony shows that a witness a couple of hundred yards away heard a gun fired at the spot where deceased was subsequently found, and in a few moments saw appellant and his son (his son having a gun) coming from the direction of where the deceased was subsequently found. The witness walked up the road in company with another witness and discovered deceased lying on the ground shot, and these facts place appellant in such juxtaposition of the crime, of themselves, from the state's standpoint, so as to preclude the issue of circumstantial evidence." So we have in this case the parties thoroughly identified as being the parties who fired the shot that killed the deceased. There was no one else in the room, or that slept in the room. So we hold that the court did not err in failing to charge on the issue of circumstantial evidence. In passing upon this case, on the question of habeas corpus, as reported in 110 S. W. 898, we there stated that "the testimony for the state is positive and unequivocal that relator, in company with another, killed the deceased by shooting him through a window at night," and we meant by that statement evidently that the facts placed appellant in such juxtaposition to the crime as to exclude any other issue than that of positive testimony. The state, in its brief, in addition to the Dobbs Case, supra, cites as also pertinently bearing on this question the following authorities: Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Kidwell v. State, 35 Tex. Cr. R. 264, 33 S. W. 342; Holland v. State, 45 Tex. Or. R. 172, 74 S. W. 763; Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193; Polk v. State, 35 Tex. Cr. R. 495, 34 S. W. 633; Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679; Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Hardin v. State, 8 Tex. App. 653.

The fourth assignment of error complains of the following charge: "Do the facts and circumstances in this case show such a general disregard of human life as necessarily includes the formed design against the life of the person slain? If so, the killing, if it amounted to murder, will be upon express malice." Appellant insists that said charge is erroneous, because it instructed the jury as to a phase of the law and as to an issue not raised by the evidence in this case, and for the further reason that said portion of the court's charge was calculated to lead the jury to believe, and did lead the jury to believe, that in the opinion of the court this defendant was a dangerous and reckless person. This is simply an illustration used by the court to get the jury to understand what murder in the first degree is. Furthermore, the circumstances surrounding this case to our minds do not show that the charge was not altogether pertinent to the facts. There is no error in the charge.

Appellant insists the court erred in refusing the following charge: "That there is no evidence before you showing or tending to show that the defendant ever saw or knew Jose Sandoval prior to and at the time of 11 o'clock p. m. of November 5, 1906. Therefore you are instructed that any act, acts, conduct, or conversation of or with said Sandoval prior to said time of 11 o'clock p. m. of November 5, 1906, cannot be considered by you in this case as in any way tending to criminate the defendant on trial herein." And in this connection appellant further complains that the court erred in failing to give the following charge: "That the testimony of Rufino Clark, Francisco Martinez, and Rafael Moreno was admitted before you upon the statement of the state's counsel that the materiality thereof would be subsequently shown; but, inasmuch as this has not been done, the court now instructs you that you will not consider for any purpose the evidence of either or all of said witnesses as to the whereabouts of Jose Sandoval, or his statements, acts, or conduct, or as to the statements made to him by Gregorio Duffy, or any other person, or to any message sent to him or received by him on said night (if they were sent or received by him). Said evidence must not be considered by you for any purpose whatever; and it is your duty as jurors to wholly disregard the same, exclude it from your minds, and try this case as though you had never heard it." The record shows that the court permitted Rafael Moreno to testify for the state that he was overtaken on the night of November 5, 1906, by Jose Sandoval, while riding on the road from Roma to Rio Grande City, at or about 9 p. m., and that he rode with said Sandoval about a league in the direction...