Flores v. State

• Decision Date: 04 May 1921
• Docket Number: (No. 6209.)
• Parties: FLORES v. STATE.
• Court: Texas Court of Criminal Appeals

231 S.W. 786

FLORES v. STATE.

(No. 6209.)

Court of Criminal Appeals of Texas.

May 4, 1921.

Rehearing Denied June 15, 1921.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Jose Flores was convicted of murder, and appeals. Affirmed.

J. A. Jones and Robt. F. Higgins, both of Marlin, for appellant.

C. M. Cureton, Atty. Gen., and C. L. Stone Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Falls county of the murder of Oscar Sharp, and his punishment fixed at death.

Appellant was a Mexican, apparently without means of employing counsel, and the trial court is to be congratulated that in his selection of some one to represent the accused he placed the case into the hands of men who have apparently taken every possible step to preserve and present the rights of appellant.

An affidavit was made in form as suggested by our statute that appellant was a juvenile under the age of 17 years at the time of the trial. This was presented to the court below, who heard evidence and rendered judgment against appellant on this issue, and this is complained of here. In the Juvenile Law (article 1195 et seq., Vernon's C. C. P.) it appears that the burden of proving that he is under 17 years of age is placed on the accused, and that such facts must be established to the satisfaction of the trial judge. The evidence bearing on this issue in the instant case was conflicting. Appellant, his mother and sister, gave testimony in his behalf, while a number of witnesses who had been more or less familiar with him for a number of years testified to facts and statements from which the conclusion could be reached that he was over 17 years of age at the time of said trial. His sister said that she was 21, and other witnesses testified that she had given her age at 24 years. She was married and had three children, one of whom was 5 years of age. This sister testified that, while she did not know appellant's age, she had two sisters born between herself and appellant. Appellant's mother in her testimony denied the fact that she had any children born between appellant and the sister mentioned, and stated that the only children she had ever borne were Frankie, age 24, Juana, age 21, and appellant, age 16. Many contradictory statements of each of the defense witnesses bearing on the question of appellant's age were proven. The motive of said three witnesses for giving testimony favorable to appellant was strong. We are not able to see from a careful examination of all the testimony that the conclusion reached by the trial judge in this regard was erroneous.

Newly discovered evidence was a ground of appellant's motion for a new trial, which was controverted in this regard by the county attorney, and evidence was heard on the proposition that the matters referred to as newly discovered evidence were known to appellant and his attorneys, or by the exercise of reasonable diligence could have been so known. Said newly discovered evidence consisted of a statement by appellant to the assistant county attorney, of his age, same having been made before that question became an issue in this case. Said statement would hardly have been admissible as original evidence in behalf of appellant, and would probably be held self-serving, and his right to prove same at all seems to be based on the ground that such statement was corroborative of appellant's statement of his age made while on the witness stand, regarding which he was contradicted by testimony for the state. We might conclude this matter by saying appellant must have known that he had made such statement to the assistant county attorney, and therefore cannot claim it to be newly discovered, but, conceding to his ignorance, and to the fact that he was a foreigner and youthful, that its importance was not known to him, and the further fact that he had not made known to his counsel that he had made such statement, still we think it amply shown on the hearing before the court of the issue made by the replication of the county attorney that said statement of the appellant to the assistant county attorney appeared in a statement of facts in another case of appellant, which statement of facts was present in court during the instant trial, and, according to the evidence heard, was handled and used by both counsel for the state and the appellant. Appellant was questioned as to what he had said about his age on said former trial on the occasion of the instant trial, and apparently reference was had to his testimony on said former occasion as contained in said statement of facts which was present and used by counsel for the state and defense. No sufficient reason is shown why the matters contained in said statement of facts could not have been ascertained by appellant's counsel if they had cared to examine same with reference thereto.

Appellant and his mother testified on the instant trial that he was 16 years of age, and, inasmuch as our statute (article 35, Vernon's P. C.) forbids the infliction of the death penalty upon one not 17 years of age at the time of the commission of the crime, the age of appellant at said time became an issue. In his charge the trial court told the jury unless the evidence led them to believe that appellant was 17 years of age at the time of the commission of the offense, if any, they could not inflict the death penalty; also that the burden of proof rested on appellant to show that at said time he had not arrived at said age. Complaint is made of said charge, and also the failure of the evidence to show that appellant was 17 years old at the time of said homicide. It seems to have been the uniform holding of this court that the burden of proof on this issue is on the accused. Ake v. State, 6 Tex. App. 399, 32 Am. Rep. 586; Ellis v. State, 30 Tex. App. 601, 18 S. W. 139; Wilcox v. State, 33 Tex. Cr. R. 392, 26 S. W. 989; Williams v. State, 77 Tex. Cr. R. 237, 177 S. W. 965. The trial court was correct in his charge in placing the burden of proof upon the defendant to establish his nonage.

We have to some extent discussed the question of appellant's age as involved in his effort to have the case transferred to the juvenile docket. We have given this record careful study on this point, and especially so in view of the infliction of the extreme penalty of the law at the hands of the jury. Appellant swore that he was 16 years of age, and would be 17 on December 3, 1920, the homicide having taken place in the summer of that year. He said he was born in 1903. On cross-examination he stated that he left home in Matamoras, Mexico, in 1915, but could not remember whether it was summer or winter at the time; also that he was 12 years old when he left home. He denied having stated on his former trial for another offense that he was going on 14 years of age when he left home. He admitted having lived in Falls county near the home of witness McDouell, but did not remember whether it was 1910, 1911, or 1912, but said he was 8 years old at that time. He denied having stated on said former trial that he was 17 years old; also denied that he had told the witness McDouell that he was 18 or 19 years old, and that he had been in the army. Appellant's sister testified as above stated with regard to her mother's children between herself and appellant, stating that she did not know her own birthday, nor the year she was born, nor the years either of the other children of her mother were born, and that she knew how old she was because she had been to see her mother 2 or 3 years prior to the trial, but that her mother did not then tell her she was 21, and that she did not remember how old her mother had told her that she was on the occasion of said visit. She denied telling the sheriff that her age was 24. It appears from the record that appellant's mother was not present at the beginning of the trial, but was located in Grayson county and brought as a witness during said trial. She testified as above indicated with regard to the fact that she had had but three children, Frankie, Juana and appellant, and admitted that she had talked with Flores, an interpreter, the night before, and that she had not stated appellant's age correctly, giving as her reason that she did not feel good. On cross-examination she stated that appellant's birthday was December 3d, and denied having told Flores, the interpreter, that it was August 27th, and also denied having told said Flores that she did not know what year appellant was born. She testified that he was born in 1903, but that this was the first time she had ever so stated. She admitted, when asked the night before as to the year of his birth, and if it was not 1901, that she had said she did not know, but this she also explained by saying she was feeling sick. She also admitted having told parties the night before she had not seen appellant since he was 3 years old. She stated she did not know what year her son Frankie was born, nor the year of Juana's birth, nor her own.

Bearing on appellant's age, state witness Flores testified that appellant's mother told him that appellant would be 17 in August, 1920; also that she had told him there was one or two years' difference between the ages of appellant and her daughter Juana; also that she said she did not know if appellant was born in 1901, 1902, or 1903; and that she kept account of his age by the months; that she told him that Juana would be 21 on December 3d. Sheriff Moore testified that he went after appellant's mother to bring her as a witness, and that she told him appellant was 18 years old, and that his birthday was August 27th; also that appellant's sister Juana had told him she was 24 years old, and that appellant was 18 years of age. Mr. Jennings, county attorney, introduced as a witness for some reason by appellant, testified that Juana told him she was 21 years old, and that appellant was 18. Wesley McDouell testified that he...