Gonzales v. State

• Decision Date: 01 February 1893
• Parties: GONZALES v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W. 253

GONZALES v. STATE.

Court of Criminal Appeals of Texas.

February 1, 1893.

Appeal from district court, Bee county; James C. Wilson, Judge.

Augustine Gonzales was convicted of murder in the first degree, and appealed. Affirmed.

C. F. Stevens, for appellant. R. L. Henry, Asst. Atty. Gen., for the state.

DAVIDSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death. The first juror called, on his voir dire, stated that he had "conscientious scruples in regard to the infliction of the punishment of death for crime," and was challenged by the prosecution. The court, subsequently, and until the eighth juror had been impaneled, without objection of defendant, examined the jurors in reference to the causes for challenge, and, as the juror affirmed his scruples in reference to the infliction of capital punishment, would himself excuse the jurors. The defendant then interposed objections to this manner of examining the jurors, and thereafter one or two jurors were thus excused by the court. The court then directed the district attorney to conduct the examination. The action of the court was correct. Appellant was arraigned upon a capital charge, and if convicted thereof, it might have been to the interest of society for him to have suffered the extreme penalty. It was therefore the duty of the court to see to it that a jury be organized, prepared and willing to assess either penalty, as they should view the facts and circumstances.

2. While on a visit to Corpus Christi, defendant quarreled with his wife because she expressed a desire to live in that city, he preferring to reside at Beeville. After they returned to Beeville, a sister of the deceased wrote her two letters, requesting her return to Corpus Christi. Over defendant's objection, the state proved the fact that the letters were written, as well as the request contained in them. The letters were lost or misplaced, and could not be found. Hence the proof of their contents. A proper predicate was laid for the introduction of this testimony, and it was relevant to the issue of malice, and, in the light of other testimony adduced, tended to explain defendant's motive for the murder.

3. Testifying in his own behalf, defendant denied stating while in jail "that he killed his wife, and was glad of it." The testimony was admitted as impeaching evidence, over defendant's objection. The court did not err in admitting this testimony. Quintana v. State, 29 Tex. App. 401, 16 S. W. Rep. 258; Ferguson v. State, (Tex. App.) 19 S. W. Rep. 901.

4. As presented by the bill of exceptions, the remarks of the district attorney were not injurious. If their impropriety be admitted, they were provoked by, and made in reference to, remarks by defendant's counsel. Baker v. State, 4 Tex. App. 223; Williams v. State, 24 Tex. App. 32, 5 S. W. Rep. 658; Willson, Crim. St. § 2321.

With reference to drunkenness, the court charged the jury "that intoxication produced by the voluntary recent use of ardent spirits constitutes no excuse for the commission of crime, nor does intoxication mitigate either the degree or penalty of crime. However, in a case where the defendant is accused of murder, as in the case before you, you may take into consideration the mental condition of the defendant, for the purpose of determining the degree of murder, if you should find defendant guilty of murder, under the evidence." In this connection the defendant requested and was refused an instruction in relation to temporary insanity produced by the voluntary recent use of intoxicating liquor. Bearing upon this question, the evidence of defendant's daughter is that her father had no whisky at the time of the murder. Lott testified that he and defendant worked at the same hotel together; that defendant left the hotel for home as was his custom, about 9 o'clock at night; that, about half past 3 or 4 o'clock of the same night, defendant came to the room of witness, and informed him that he...