Espalin v. State

• Decision Date: 23 November 1921
• Docket Number: (No. 6420.)
• Citation: 237 S.W. 274
• Parties: ESPALIN v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 274

ESPALIN v. STATE.

(No. 6420.)

Court of Criminal Appeals of Texas.

November 23, 1921.

Rehearing Denied January 25, 1922.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Francisco Espalin was convicted of being an accomplice to the crime of murder, and he appeals. Affirmed.

Winter, Goldstein, Miller, McBroom & Scott and Jackson, Isaacks & Fryer, all of El Paso, for appellant.

C. L. Vowell and A. J. Harper, both of El Paso, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted, in the Thirty-Fourth district court of El Paso county, of being an accomplice to the crime of murder, and his punishment assessed at 15 years in the penitentiary.

Appellant owned land in the Rio Grande valley below the city of El Paso. On said land he had patches of watermelons inclosed by wire fences. Prior to the date of this homicide he had employed various parties, among then one Luis Garcia, to guard said melon patches against depredations. On the night of the homicide four young men came from El Paso down a road adjacent to the melon patch guarded by Garcia. Two of said parties, deceased, Grady Weeks, and one Caples, alighted from the automobile in which the four were riding, got over a fence and into a melon patch of appellant. Garcia, from a position across the road and in another inclosure, fired a rifle, shooting Grady Weeks in the head and killing him. Garcia was indicted and convicted as a principal and appellant was convicted as an accomplice to the murder of young Weeks. Other facts necessary to elucidate our opinion will be stated in discussing the various questions raised.

Appellant claimed that deceased and Caples, his companion, had gone into the melon patch in question in the nighttime for the purpose of committing theft, and that, this being true, the act of Garcia in killing Weeks was justifiable homicide under the provisions of article 1105, Vernon's P. C., which makes justifiable a homicide inflicted for the purpose of preventing theft at night. The state contends that taking melons from the patch is not theft under our statute. In the early Penal Code of Texas it was made theft for one to steal or feloniously take any growing, standing, or ungathered corn, or other agricultural product. Our Legislature enacted article 1105, supra, in 1871. Three years later, what is now article 1234, Vernon's P. C., was enacted, specifically declaring that if any person shall take or carry away from the farm, orchard, garden, or vineyard of another, without his consent, any fruit, melons, or garden vegetables, he shall be fined in any sum not exceeding $100. By the Revised Statutes of 1879 this act was classified as malicious mischief, and has been so classified in succeeding revisions or codifications of our statutes since. When the Legislature selects certain acts, though theretofore or otherwise made penal under an existing statute, and by specific designation makes such acts punishable by a different penalty from that theretofore applicable, and essentially changes the ingredients of the new offense, such specified acts are removed from the list or classification of crimes to which they formerly belonged and must thereafter be in that class in which they are placed by such new act. This is illustrated by the well-known rules applicable to laws making theft of certain designated property punishable by different penalties from that applicable to theft in general, such as theft of hogs, cattle, horses, etc. It would clearly no longer be proper to prosecute or to punish one charged with violating such law under the general theft statute.

While the question here presented was not raised by the accused on appeal in Busey v. State, 87 Tex. Cr. R. 23, 218 S. W. 1048, still it appeared to us so clear that one charged with taking ten bushels of pears from an orchard could not be prosecuted under an ordinary indictment for theft, but must be prosecuted under the provisions of article 1234 for malicious mischief, that in reversing said case upon another error we felt it our duty to call attention of the trial court to the provisions of said last-named article, and to the fact that the prosecution should be brought thereunder.

With the legislative purpose in the enactment of a given law we are not concerned, save we be called upon to construe some part or the whole of such law, by reason of some ambiguity therein or lack of clarity of expression. The language of article 1234, supra, omits the well-recognized elements of theft, and would seem to plainly indicate that the Legislature intended to remove the acts therein named from the domain or classification of theft. While this appears to be the plain indication, it may not be amiss, in view of the language of Mr. Black in his work on Interpretation of Laws, p. 107, where the learned author says:

"It must always be supposed that the legislative body designs to favor and foster, rather than to contravene, that public policy which is based upon the principles of natural justice, good morals, and the settled wisdom of the law as applied in the ordinary affairs of life"

—and in view of the sequence in point of time in the enactments, to conclude that our lawmakers did not intend that that class of offenders most frequently composed of ignorant, youthful, and thoughtless persons, who ordinarily take fruit, melons, and vegetables from our orchards, farms, and gardens, could be ruthlessly shot down when so engaged and those who killed them claim themselves justifiable as persons who had taken human life in preventing theft at night. We think it correct to further state that, as far as our information goes, no other state save Texas justifies homicide when committed to prevent theft at night, except such theft be a felony.

Our conclusion is that one who kills another while the latter is engaged in an act comprehended by the terms of article 1234 supra, could not, as a matter of law, claim such act to be justifiable homicide; but this in no wise affects one's right to act in defense of property as given under article 1107, Vernon's P. C. This disposes of many of appellant's contentions as set out in his various assignments of error in his brief and contained in several bills of exceptions.

The cases of Grant v. Haas, 31 Tex. Civ. App. 688, 75 S. W. 345, Slack v. State, 67 Tex. Cr. R. 460, 149 S. W. 107, and Davis v. State, 81 Tex. Cr. R. 450, 196 S. W. 521, are cited by appellant in support of these assignments of error, and this contention made by him that Garcia was justifiable in taking the life of young Weeks.

The expressions of the courts in their opinions must be read in the light of the issues and facts in the case under discussion in such opinion. Whether the taking of melons was malicious mischief or theft was in no way an issue discussed in Grant v. Haas, supra. The case was one of damages sought by a party injured by a spring gun set in the melon patch by its owner. In Slack v. State, supra, the defense relied for justification of a homicide on the fact that deceased was in the act of stealing corn from a field of the accused. The state witnesses swore that deceased left the wagon in which they were and entered the field to look for a watermelon. While there is no discussion of the question involved in the instant case, as to whether taking melons from a field is theft or malicious mischief, we do find this expression in the opinion in the Slack Case:

"If deceased was merely trespassing on the premises of appellant, and at the time he was shot he was not engaged in committing a theft, and his acts and conduct were not such at the time as to make it reasonably appear to appellant that he was there for the purpose of committing theft, the killing would be unjustifiable. But, if, in fact, deceased was stealing corn in the nighttime, and was leaving the premises with the corn in his possession, appellant was justifiable in shooting him."

We take this to be in accord with our views here expressed. In Davis v. State, supra, a wagonload of melons had been taken and secreted apparently at some distance from the patch where they grew. The owner found them and went with others, on the night following, to apprehend the takers when they should return for the melons. When they did come a difficulty ensued and the owner of the melons was killed. It would appear so plain that the rights of the parties arising from and dependent on their attitude toward a load of melons moved from the patch before the contest arose could shed no light upon the question under discussion that we forego any further discussion of said authority.

A special charge was requested by appellant to the effect that, if deceased entered the premises in question on the night of the homicide to steal melons already severed from the vines, piled up and ready for market, or if his acts and conduct in the premises were such as to make it reasonably appear to Luis Garcia that such was his purpose, and that Garcia shot to prevent the theft of such melons, the appellant should be acquitted. Measuring the applicability of this charge by the facts, it does not appear that deceased or Caples, or any of their party, knew there were any melons pulled or piled up in the field. Garcia did not claim on the witness stand, or at any time, that deceased or Caples were approaching or near any melons severed from the vines, nor did he claim that he shot to prevent the taking of such melons. Appellant testified that there was a pile of melons already severed from the vines located about 50 feet from the spot where Weeks was at the time he was killed. We think such special charge not called for by the facts.

There was no testimony tending to raise the issue that Garcia shot at Caples, the companion of deceased, and that such shot accidentally killed young Weeks. There was hence no need for the submission of this issue as presented in special charge No. 12.

The...