Conde v. State

• Decision Date: 25 November 1893
• Citation: 24 S.W. 415
• Parties: CONDE et al. v. STATE.
• Court: Texas Court of Criminal Appeals

24 S.W. 415

CONDE et al. v. STATE.

Court of Criminal Appeals of Texas.

November 25, 1893.

Appeal from district court, Cameron county; John C. Russell, Judge.

Ruperto Conde and Esteban Conde were convicted of murder in the second degree, and appeal. Reversed.

R. L. Henry, Asst. Atty Gen., for the State.

DAVIDSON, J.

Gregoria Conde, together with his two sons, Ruperto and Esteban, were jointly indicted for the murder of Francisco Andes. Ruperto and Esteban were placed on trial, and convicted of murder in the second degree. The prosecution was permitted to prove that, about one week after the alleged homicide, Esteban Conde was seen at a dancing party wearing the "banda" or "Mexican sash" of the deceased, and that within a short time subsequent to said homicide Esteban and Gregoria Conde, being together, sold to Garza the gun of the deceased. This latter occurrence transpired at the residence of Gregoria Conde, and in both instances Ruperto Conde was not present. It is urged here, and was so urged on the trial, that these facts were inadmissible as against Ruperto Conde. The evidence adduced on the trial sufficiently shows that these three parties, father and two sons, acted together in committing the murder. While the acts, conduct, and declarations of one co-conspirator, made after the consummation of the conspiracy, cannot be used as evidence against another co-conspirator, yet any fact or circumstance which would tend to prove the guilt of the codefendant would also tend to prove the guilt of the defendant, and would be admissible against him. Pierson v. State, 18 Tex. App. 524; Clark v. State, 28 Tex. App. 189, 12 S. W. 729. The possession of the sash by Esteban Conde, as well as the possession of the gun by Gregoria and Esteban Conde, would be admissible to prove their guilt, and would also be admissible for the purpose of proving the guilt of Ruperto Conde, and was therefore admissible against him. They were not acts, declarations, or conduct of the co-conspirators transpiring subsequent to the crime, but were physical facts, independent and inculpatory in their nature, and were the fruits of the crime. The gun was seen in the possession of deceased the day of and prior to his disappearance, and the sash he had been wearing for two years prior to his death. Pace v. State, (Tex. Cr. App.) 20 S. W. 762. The testimony was clearly admissible. Authorities above cited.

2. The defendant requested the court to instruct the jury in regard to the law pertaining to accomplice's testimony, and the necessary corroboration, as a condition precedent to conviction. The charge was refused. In this connection the evidence discloses that Ramon, the principal state's witness, accompanied the defendants to the body of deceased, which they reached after traveling several miles, some distance of the way on foot, through dense brush. Upon inquiring of the defendants, while en route to the body, their destination, and where they were taking him, this witness states he was informed by them that they "were going to bury Don Pancho Andes, who is dead." Upon reaching the body, they found the upper portion of it, including the head, "was covered with a coarse white cloth, bloody, and having dirt or sand upon it." At the body were also found tools with which to dig a grave. The witness was told to dig the grave, which he did, and assisted in burying the body. Shortly after leaving the grave, in company with defendants, they met Gregoria...