Conde v. State

• Decision Date: 29 June 1895
• Citation: 34 S.W. 286
• Parties: CONDE et al. v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 286

CONDE et al. v. STATE.

Court of Criminal Appeals of Texas.

June 29, 1895.

Appeal from district court, Nueces county; J. C. Russell, Judge.

Estevan Conde and Ruperto Conde were convicted of murder in the second degree, and appeal. Reversed. For prior report, see 24 S. W. 415.

Mann Trice, for the State.

HENDERSON, J.

The appellants were tried and convicted at the December term, 1894, in the district court of Nueces county, of the offense of murder in the second degree, and their punishment assessed at five years' confinement in the penitentiary. The indictment in this case was originally presented in the district court of Cameron county. A trial was had in said court, and the defendants convicted of murder in the second degree. An appeal was prosecuted to this court, and the case was reversed because of the failure of the court to charge on accomplice testimony, and because the court improperly admitted the opinion of a witness as to the cause of the death of the deceased. For a report of the case, see 24 S. W. 415. After the case was sent back, the venue was changed to Nueces county. A trial thereof was had in December, 1894, which resulted in a conviction of both of said defendants for murder in the second degree, and the punishment of each assessed at a term of five years in the penitentiary, and from the judgment and sentence in said case the defendants prosecute this appeal.

It appears that the parties were all Mexicans, and that the defendants lived with their father, Gregoria Conde, in Cameron county, at the time of the alleged homicide, and also that the deceased, Francisco Andes, was staying at Gregoria Conde's. The last time the latter was seen alive was on the 12th day of March, 1893, and within a few days thereafter (not exceeding a week) the evidence shows that the body of said Andes was buried in a dense thicket, but a short distance from Gregoria Conde's house. The only witness upon this latter point is Celso Romon, who testifies substantially: "That he lived on a ranch not far from where the defendants lived. That about the 12th of March, 1893, Estevan Conde (one of defendants) came to my house at the Prado ranch, and asked me to go with him to Santa Teresa [the ranch or place where defendants lived]. This was about half past ten o'clock in the morning. I mounted my horse, and accompanied him. After going some distance, we met Ruperto Conde [the other defendant], and who is a brother of Estevan. He was on foot, and coming from the direction of the Santa Teresa ranch. Ruperto asked Estevan, `Have you got him?' Estevan answered, `Yes, Ruperto,' then mounted behind Estevan. Ruperto wore a knife and Estevan a pistol. Estevan then said, `Come on, let us go.' I asked, `Where are going?' Estevan answered, `We are going somewhere.' I then demanded to know where they were going to take me. Estevan then said, `We are going to bury Francisco Andes.' We then continued on the road we were traveling until we arrived at a place 400 or 500 yds. from Santa Teresa, where we turned off the road, and entered a path. We traveled this till the woods become too thick for the horses to pass through. We then dismounted, tied our horses, and made our way on foot through a very thick brush, until we arrived at a very small opening, where the body of Francisco Andes was lying. His head and shoulders were entirely covered with a coarse, white cloth. The cloth was bloody. I did not remove the cloth, nor did I see the face. I knew it to be the body of Francisco Andes by the sandals and pantaloons. I did not see any wounds upon the body. There were beside the body a spade and an iron bar with which to dig the grave. Estevan showed me the tools, and told me to dig the grave, which I did, loosening the ground with the bar, while Ruperto threw out the dirt with the spade. We dug a hole about a foot deep, whereupon Estevan and Ruperto lifted the body and placed it in the hole. I then covered the body with earth, filling the grave. When I had finished, we gathered up the tools, and returned to the place where we had left our horses. As we rode away we met Gregoria Conde, who was on horseback. He said to Estevan, `Have you finished the job?' Estevan answered, `Yes.' Then Gregoria turned toward me, and, placing his hand upon his pistol, said: `Be very careful about this. If anything of this becomes known, I or my boys will injure you.' I then rode away, and returned to my home." This witness, according to his testimony, four days after this occurrence, rode some 18 miles, and told Mr. White, who was also a witness, what had occurred as above stated; and in a short time thereafter he left the vicinity, and went over into Mexico, to visit his father, as he says. The sheriff, in a few weeks, hearing of the matter, and that Romon could tell him in regard to it, went into Mexico, and sought out the witness, whom he persuaded to come across the river into Texas, and point him out the grave where they had buried Andes. The body was exhumed, and an inquest held. The corpse was identified as that of Francisco Andes, but no wounds or marks of violence were discovered. The cloth spoken of by the witness Romon was found upon the body, and the sheriff stated "that it had a black substance, like clotted and dried blood, on it." We have thus quoted fully the testimony of Romon, as the state's case depends upon his evidence.

The questions presented for our consideration are:

1. Does the evidence in the case establish the corpus delicti? By this we mean the body of the offense; not only that a dead body has been found and identified, but also the fact that the deceased came to his death by some criminal means or agency. As said by Mr. Wharton (see Whart. Hom. 641): "It is essential to a conviction for any degree of culpable homicide — First, that the deceased should be shown to have been killed; and, secondly, that his killing should have been proved to have been criminally caused. * * * Unless the corpus delicti in both these respects is proved, a confession by the accused is not by itself sufficient to sustain a conviction." And see Lightfoot v. State, 20 Tex. App. 77; Harris v. State, 28 Tex. App. 308, 12 S. W. 1102. The indictment in this case is in two counts. In the first it is charged that defendants killed the deceased by stabbing him with a knife, and in the second that they killed him by some means and with some weapon unknown to the grand jury. This gave the court trying the case the greatest latitude in permitting evidence to show that deceased came to his death by some criminal means, but in this respect the testimony utterly fails to establish with that degree of certainty which the law requires that the deceased, Andes, came to his death by any criminal means. We have already quoted from the record all that is disclosed as to the manner or means of his death, and the most that can be gathered from it is that the corpse of Andes was seen by the witness Romon after his death, and he assisted in burying him. He did not see his face. He saw no wounds on his person, or other marks of violence. How long he had been dead, whether the body was stiff and cold or not we are not told. A coarse, bloody cloth over the neck and shoulders of deceased, and the unusual circumstances attending the interment of the dead body, are all the indications of violence or foul play that the testimony affords. These facts are unquestionably suspicious. But, even if they came from a witness of the most unimpeachable character, could we say that the proof was plenary of the "factum probandum" in this case, to wit, that the deceased came to his death by some criminal means or agency? The bloody cloth is all that we have that would indicate violence, but this is not inconsistent with other causes that might have produced the blood. We are not informed how fresh the blood was, and it may have been from some animal, and the cloth used by the Mexicans for the purpose of interment; or it may have been the blood of the deceased coming from his mouth or nose, and yet his death was not occasioned by violence, but occurred from natural causes. And this view is strengthened when, after the body was exhumed, no marks or indications of violence were found on it. The body was then in an advanced state of decomposition, but the bones were all examined, and no broken bones or marks of violence were found. In a Mississippi case, where the evidence was that the circumstances of deceased's death and the state of his body indicated poison by stranconium or...