Cantu v. State, 20577.

• Decision Date: 08 November 1939
• Docket Number: No. 20577.,20577.
• Parties: CANTU v. STATE.
• Court: Texas Court of Criminal Appeals

Page 705

135 S.W.2d 705

CANTU v. STATE.

No. 20577.

Court of Criminal Appeals of Texas.

November 8, 1939.

Rehearing Denied January 31, 1940.

Commissioners' Decision.

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

Guadalupe Cantu was convicted of murder, and he appeals.

Affirmed.

Cameron & Hardin, of Edinburg, King C. Haynie, of Houston, and Ramon L. Longoria, of McAllen, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the state penitentiary for a term of 25 years.

The indictment, which contains four counts, alleges that the appellant unlawfully, voluntarily and with malice aforethought killed Narcisa Lupez Cantu by shooting her with a gun. The proof shows that on the afternoon of January 23, 1939, appellant and his wife returned from a visit they had made to his mother's. A few minutes after their return, Mrs. Cantu went out to feed the chickens, and appellant also went out into the back yard. They then went back into the house and a short time later a gun shot and a woman's screams were heard. A few seconds later another shot was heard and soon thereafter appellant was seen going to the orchard with a bundle and a small oil can. Smoke was then seen, and appellant a short time later started the water pump and watered the cabbage which were growing in the garden. After this had been completed, he was seen to return to his house, come out again, get into his car and proceed toward town. In about an hour he returned with some ice which he placed in the cooler. He then called for his wife, but not receiving any reply he turned on the electric light and found her lying dead on the kitchen floor. He then inquired of a servant, Sofia Vela, who lived nearby as to whether or not she had heard or seen anything during his absence. Upon being informed that she had not, he went to his brother's home and informed him of his discovery upon returning from town to his home with the ice. The officers and the undertaker were summoned. A doctor made a post mortem examination which revealed three wounds on the deceased's body, two made by bullets and one being a superficial wound. One of the bullets had entered at the breast and gone through and the other had entered at the right ear and lodged in the skull. This bullet was recovered and appeared to have been fired from a 45-calibre pistol. An investigation of the premises failed to reveal anything was missing, and while appellant owned shotguns and a 38-calibre pistol, nothing was said about owning a 45. On the following day, the officers in their search found cartridges fitting a 45-calibre pistol. Appellant admitted that he had such a gun but stated that he had left it at the home of his parents. He admitted later that he had the 45-calibre pistol with him when he returned to his home with the ice and had it in his hand when he turned on the lights. Mr. Gonzaullas of the Department of Public Safety, who professed to be an expert on the identification of firearms, etc., testified that it was his opinion that the bullet taken from the body of the deceased was fired from the 45-calibre pistol owned by the appellant and shown to have been in his possession about the time the offense was committed. It was shown that appellant carried two policies of insurance of $1,500 each on his wife's life. It was also proved that on former occasions appellant abused and mistreated the deceased. There was some evidence offered on behalf of the appellant which tended to show that Sofia Vela, the servant, could not have seen what she claims to have seen from the window of her home. If this be conceded the fact remains that she heard two shots fired and screams of a woman coming from appellant's home at the time appellant was present. The deceased had two gun-shot wounds in her body and these wounds were inflicted with what appeared to be a 45-calibre gun. No other person seems to have been seen in or about the premises on the afternoon in question except the appellant. We believe the evidence is sufficient to sustain the jury's conclusion of appellant's guilt. It might be noted that this cause was once before this court on habeas corpus with the object in view of obtaining bail. See Ex Parte Cantu, 135 Tex.Cr.R. 281, 117 S. W.2d 1102.

By bill of exception number one, appellant complains because the witness, Sofia Vela, was permitted to explain why she told appellant when he came to her home and asked her what she had seen and heard that she had seen or heard nothing. She explained that the reason she told him she heard or saw nothing was due to the fact that she was afraid of him. Appellant objected on the ground that this was a conclusion of the witness. We do not so regard it. The witness had a right to explain why she made such a statement to the appellant. See Branch's Ann.P.C., p. 60, Sec. 94; Cornett v. State, 54 Tex.Cr. R. 372, 373, 112 S.W. 1071.

Bill of exception number two complains of testimony given by Mr. Gonzaullas, a professed expert on identification of firearms, bullets and cartridges. Appellant objected to all of his testimony on the ground that he had not qualified as an expert; that he failed to show a sufficient knowledge of the scientific subject upon which he gave his opinion and therefore his testimony had no probative value. We know of no legal standard by which to determine a person's qualification as an expert on the subject mentioned. While the examination of the witness might have shown that his knowledge of the subject was more limited than might have first appeared, we would not be authorized to hold as a matter of law that he did not measure up to the standards of an expert. The question of whether or not an expert witness has so qualified is one which rests largely in the discretion of the trial judge and we would not be authorized to disturb his decision on the matter unless it clearly appeared that he abused his discretion. See Landry v. State, 117 Tex.Cr.R. 396, 35 S.W.2d 433; Guse v. State, 97 Tex.Cr.R. 212, 260 S.W. 852. The objection to his testimony seems to have gone more to its weight than its admissibility.

By bill of exception number three, appellant complains of the admission of a purported voluntary statement made to the District Attorney, Mr. Hartley. His grounds of objection seems to be that the same was not admissible in evidence against him since it was made through an interpreter, one Longoria, who translated what the defendant (who was unable to speak English) said from Spanish into English, then read the written statement over to the defendant, who signed it. It is the defendant's contention that since the interpreter did not take the stand and testify to the effect that he properly interpreted the statement and since the district attorney who wrote down the statement did not understand Spanish, the state had not laid a proper predicate for its admission in evidence. It is true that Longoria did not verify the statement itself as being true and correct; or that the interpretation thereof was correct, but we noted from the record that another witness took the stand who was present at the time the statement was made, and testified as follows:

"After the defendant made this statement and before it was signed by him it was read over to him by Mr. Longoria in Spanish and I am able to state that it was read to him correctly in Spanish, although there were some corrections made in the statement by the defendant * * * or at his instance. I would recognize that statement if I were to see it again * * * that is the statement that the defendant signed at the time I have just related."

It is our opinion that a proper predicate was laid for the introduction of the purported confession and that the proper warning was given the defendant. We do not think our holding on this point in conflict with the holdings of this court in the cases of Turner v. State, 89 Tex.Cr.R. 615, 232 S.W. 801, and Cervantes v. State, 52 Tex.Cr.R. 82, 105 S.W. 499. In those cases the state did not attempt to lay any predicate whatsoever and the testimony of the witnesses as to what the interpreter said was clearly hearsay.

Bill of exception number four complains of the same matter as bill number two. For the reasons there assigned, this bill is overruled.

Bill number five complains of the following remarks by the state's attorney in his closing argument to the jury:

"Counsel has made much ado about the actions of the defendant in this case. He has told you about * * * this defendant down at Mercedes * * *. This very grilling he went through down there. I think the evidence discloses the examination began about eight o'clock or eight-thirty. * * * Mr. Hardin says they did not give him a drink of water, and Mr. Hardin says they did not offer him anything to eat—no, but this defendant, when he shot her down in cold blood, he did not say, `Do you want some water, or want something to eat.'"

Upon objection that the statements constituted unsworn testimony, the court retired the jury and gave the attorney for the state an opportunity to explain his statements. Upon recalling the jury, the state's attorney stated to the jury as follows:

"* * * I stated that the defendant shot his wife down in cold blood, and that he did not give her a drink of water or anything to eat. There is no evidence in this record as to whether or not the defendant gave his wife a drink of water or anything to eat, and I did not intend to convey to the jury that there was any evidence of that. * * *"

The court then instructed the jury that they could consider the above remarks only as argument, and not as a statement of any fact. We think the prompt action of the trial court in his instruction to the jury and the admission of the state's attorney before the jury properly confined them...