Gallegos v. State

• Decision Date: 06 October 1948
• Docket Number: No. 24082.,24082.
• Citation: 215 S.W.2d 344
• Parties: GALLEGOS v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W.2d 344

GALLEGOS v. STATE.

No. 24082.

Court of Criminal Appeals of Texas.

October 6, 1948.

Rehearing Denied December 15, 1948.

Appeal from District Court, DeWitt County; Howard P. Green, Judge.

Louis Gallegos was convicted of assault with intent to murder, and he appeals.

Affirmed.

Tom Cheatham, of Cuero, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of an assault with intent to murder on Valente Garza, and assessed a penalty of ten years in the state penitentiary.

The testimony is confusing to some extent and difficult to understand in its entirety due, perhaps, to the fact that practically all the witnesses were of Mexican descent and testified by means of an interpreter. We do think, however, that it is reasonably clear that on the evening of December 21, 1946, several Mexicans were drinking beer at different "saloons" in Yorktown. Eventually, one, Benito Gonzales, came to Alfredo Perez's saloon, where he found appellant and his brother, Leon Gallegos, sometimes called "Chino", playing a game of pool. Gonzales challenged Chino to a game of pool, and after some conversation between them, Gonzales took offense at an insulting remark made to him by Leon, and struck Leon with his fist. Leon started to strike Gonzales with a billiard cue, which was wrested from him. Leon then produced his knife and went to cutting at Gonzales, who struck Leon over the head with the cue. Valente Garza and his two brothers had come into Perez's place prior thereto, but had not engaged in any difficulty. Appellant came to the assistance of his brother, Leon. Valente Garza, who claimed to be doing nothing at such time but attempting to stop the fight, was cut by appellant, once under the left arm and once in the back, by means of a knife with a four-inch blade. This was a dangerous wound under the arm, penetrating the body cavity, resulting in the loss of much blood, and the eventual amputation of the arm.

There were other cuttings and injuries suffered in this encounter, but, according to all the testimony, appellant was the one who cut Valente Garza.

There are many bills of exception in the record. Bill No. 1 complains of the trial court's refusal to place appellant's brother, Leon, on trial for an indictment charging an assault upon the same Garza at the same time and place; and again, requesting that said Leon be secondly placed on trial for an assault upon another person; and further, that he be placed on trial for a third assault upon a third party at such time and place in order that he might be an acceptable witness for appellant. Undoubtedly Leon seems to have gone berserk and in his rage possibly cut some other parties in this melee, and the State met such motion for a severance with a dismissal of the assault case against Leon relative to Valente Garza, thus leaving Leon free to testify herein in the event his testimony was desired. We think such procedure was correct.

Bill of Exception No. 2 complains of the action of the trial court in allowing the State to produce the testimony of certain witnesses after the appellant had placed his witnesses on the stand, his contention being that the testimony of such State's witnesses was not in rebuttal of the defense testimony. This is a matter left largely in the discretion of the court and does not savor of any error as herein shown. See Art. 643, C.C.P.

Bill No. 3 complains of certain remarks of Mr. Hartman, a private prosecutor. We think the remarks were justified and deducible from the testimony.

Bill No. 4 complains of the action of the district attorney in referring to the failure of appellant's brother, Leon, to testify in this case, he being present in court. A portion of this bill was not approved by the court, but we gather therefrom that eventually Mr. Martin, the district attorney, said that while Leon could not be compelled to testify because he was not under indictment in this particular case although the indictments in two other separate cases were pending, still he could testify if he so desired. The fact that the indictment against Leon for an assault upon Valente Garza had been dismissed, we see no reason to think that such remarks were in error.

We see no merit in Bill No. 5 which relates to certain argument concerning the knife used by appellant.

Bill No. 6 relates to a conversation purportedly had with two witnesses by appellant a short time prior to this cutting, wherein they stated that he showed them a knife similar to the one acknowledged to have been used by him in cutting Valente Garza, and told these witnesses that he had same for his own protection. We think this testimony was admissible on more than one ground.

Bill No. 8 pertains to the same subject matter as Bill No. 5, but as qualified by the court, no error is shown therein.

Bill No. 9 complains of the charge of the court in that nowhere therein does the same define the word "intent" as used therein. This is a word of such common and generally accepted meaning that no necessity should exist for a further definition thereof....