Gonzales v. State

• Decision Date: 13 May 1914
• Docket Number: (No. 2991.)
• Citation: 171 S.W. 1146
• Parties: GONZALES v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 1146

GONZALES v. STATE.

(No. 2991.)

Court of Criminal Appeals of Texas.

May 13, 1914.

Rehearing Denied June 10, 1914.

Appeal from District Court, Frio County; J. F. Mullally, Judge.

Lino Gonzales was convicted of homicide, and he appeals. Affirmed.

R. W. Hudson, J. L. Pranglin, and Magus Smith, all of Pearsall, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is a companion case to that of J. A. Serrato, 171 S. W. 1133, decided at the last sitting of this court, and as the questions raised as to the introduction of testimony and the charge of the court are, in the main, the same as in that case, it is not necessary to enter into an as extended discussion of them as was done in that case. In this case, as in that case, it is not contended by the state that appellant was one of those who fired the fatal shots which killed Ortiz, but that he became a principal by reason of the agreement he entered into with the others named and his acts and conduct in furtherance of that agreement.

In this case appellant testified and admits that when he joined Rangel's company he knew they were going to Mexico to fight; that Rangel wanted appellant to help him and his party, and they were going to Mexico to take up arms in the interest of the party to which Rangel belonged, and that he (appellant) was going with Rangel to fight in the interest of the party. He also admits he was present when Ortiz and Buck were captured and tied by Rangel and his company; that he was present when Gardner and White were fired on; that he was with them during all the time they had Buck and Ortiz in their possession, and knew when Ortiz was killed; he says he was a short distance behind when Ortiz was killed, while Buck says he was with those guarding him, and that appellant was one of the men who captured him and Ortiz, and was one of the men who tied Ortiz and guarded them as they traveled through brush on their way to Mexico.

The evidence for the state nor the defendant does not raise the question that appellant may have been an accomplice or accessory, for the evidence tends to show, and shows only, if it shows anything, that he was a principal in the commission of the offense, for he at the time of the killing of Ortiz was then engaged in the furtherance of the agreement which he admits he entered into, and the only question is whether or not the agreement and the acts and conduct of the appellant in furtherance thereof are such as to render him a principal offender.

To constitute one an accessory in this state his participation in the crime and acts must all have occurred subsequent to the commission of the offense. Welsh v. State, 3 Tex. App. 419. And to constitute one an accomplice, his acts must have occurred prior to the commission, and he at the time doing nothing in furtherance of the common purpose and design. In Bass v. State, 127 S. W. 1025, this court said:

"If the party charged, though not actually present, is engaged in or is doing something in the chain of causation which leads up to the offense and is a necessary part of its accomplishment, he is a principal, though he may not be at the immediate time actually present."

This we understand to be the clear holding of the court in the case of Dawson v. State, 38 Tex. Cr. R. 9, 40 S. W. 731; Id., 38 Tex. Cr. R. 50, 41 S. W. 599, and it is undoubtedly the conclusion reached by Judge White in the case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, where it is said that an accomplice is one whose acts are all performed before the commission of an offense, while a principal may not only perform some antecedent act, but when the offense for which he is on trial is actually committed is doing his part of the work in the furtherance of the common purpose, citing Berry v. State, 4 Tex. App. 492; Heard v. State, 9 Tex. App. 1; Wright v. State, 18 Tex. App. 358. Under the evidence in this case the issue of appellant being an accomplice or accessory does not arise, for by his testimony alone he was along with his co-conspirators, engaged in an unlawful enterprise, and at the time by his acts and conduct performing his part in furtherance of the common purpose and design.

The charge of the court on principals, which is an exact copy of that given in the Serrato Case, is again severely criticized because of the use of the words "whether personally present or not." As the undisputed facts, even his own testimony, shows conclusively that appellant was along with those who actually fired the shots, and not but a few yards away, engaged at the time in the furtherance of the common purpose and design, he would be a principal, although not bodily present at the exact spot when the shots were fired, if the homicide was committed in pursuance of and in furtherance of the accomplishment of the design, and committed while all the parties were actually engaged in the pursuance of the common purpose. The court recognized the fact that there was no positive testimony going to show that the killing of Ortiz specifically was within the compass of the original agreement as made between the parties, and no positive testimony showing that this identical homicide was in contemplation by any of the parties at the time the agreement was formed, and as appellant is not shown to be one of the persons who fired the fatal shot, his connection with the killing must be proven, if proven, by circumstantial testimony, and the court so instructed the jury.

It was shown by positive testimony that appellant entered into an agreement to organize and invade Mexico on a hostile mission; that they were all armed and equipped to engage in war; it is further testified too that there was embraced in the original agreement a purpose to resist all interference, and testimony to show an intention to kill all those who interfered with the accomplishment of the main purpose and design, and circumstances in the case would tend to show that Ortiz was captured and held to prevent him with others from interfering in the accomplishment of the common purpose, and when he refused to go along with them he was killed to keep him from reporting their purpose and design, and thus with others frustrate it. Under such circumstances it is said in the Noftsinger Case, 7 Tex. App. 301:

"`In a case like the present, depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived.' Cooper v. State, 19 Tex. 449; Barnes v. State 41 Tex. 351; Hamby v. State, 36 Tex. 523; Black v. State, 1 Tex. App. 368. And in such cases the nature of the case, in many instances, demands a greater latitude in the presentation of the evidences of the circumstances than where a conviction is sought upon direct and positive testimony. Ballew v. State, 36 Tex. 98."

In Burrell's Case, 18 Tex. 732, it was held the agreement may be shown directly or by circumstances, such as his companionship with the principal actor, his knowledge of his purpose, and his own conduct before, at, and after the commission of the offense. Blain v. State, 33 Tex. Cr. R. 236, 26 S. W. 63; Harris v. State, 31 Tex. Cr. R. 414, 20 S. W. 916; and in McFaddin's Case, 28 Tex. App. 241, 14 S. W. 128, it is held parties are...