Guerrero v. State

• Decision Date: 09 December 1914
• Docket Number: (No. 3348.)
• Citation: 171 S.W. 731
• Parties: GUERRERO v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 731

GUERRERO v. STATE.

(No. 3348.)

Court of Criminal Appeals of Texas.

December 9, 1914.

Appeal from District Court, Hays County; Frank S. Roberts, Judge.

Benigno Guerrero was convicted of murder, and he appeals. Affirmed.

Louis T. Dugger, of San Marcos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at death, from which judgment he prosecutes this appeal.

No one saw the actual shooting, now living, other than appellant, and he, as he had a right not to do, did not testify in the case. Appellant had married Catarino Morales, and is charged with having killed a sister of his wife, Isabel Morales, a 15 year old girl.

As tending to show a motive for the killing, the father of the two girls, Nicholas Morales, testified that on the day of the homicide he had a conversation with the defendant; that in this conversation he (the witness) told appellant that the girl Isabel had told him that he (defendant) had said to her, "If she (Isabel) would not run away with him he would kill her, and that if she gave away any of the secrets they had between them he would kill her;" when appellant asked if he had any proof in regard to the matter, and when told that the father had appellant replied, "Well, we will go to law about it." The girl was killed that evening in the field, while she was at work. This conversation was objected to, but the court did not err in admitting it as it clearly tended to show the motive of appellant in killing deceased.

Appellant also objected to a conversation had between appellant and Gregorio Valdez shortly after the shooting. Valdez says he heard of the shooting, and went to appellant's home and asked why he had killed the girl, when appellant replied, "In Mexico they are killing lots of them — why can't I kill one?" This was an admission that he killed the girl, and was admissible to prove that fact. It is not contended that he was under arrest at that time, in fact it is shown by all the testimony that he was not. However, when the testimony was admitted, appellant's counsel cross-examined the witness in regard to this statement, asked the following questions, and elicited the following answers thereto:

"Q. State exactly what words you used in that question? A. When I got to the house he was in bed, and I says: `For God's sake, Guerrero, what have you done?' Q. Now, was this answer about killing so many Mexicans in Mexico and about him having a right to kill one, was that the answer to that question, `For God's sake what have you done?' A. That's what he said. That's all he said to him."

The state on its direct examination had not elicited the question propounded by appellant to the witness, but merely the statement of defendant, and if the question, "For God's sake, what have you done," was hurtful, it was elicited by appellant on cross-examination in answer to a direct question.

The defendant's plea was insanity, and he introduced several witnesses to show that the relatives of his mother were insane, that on one occasion he himself attempted to commit suicide, and other facts and circumstances were introduced by defendant on this issue. The state introduced a number of witnesses who testified that appellant was sane. Among other things the record discloses that, while the trial was being conducted, and the jury was in the box, appellant "would throw his head about, shake his hands, and shuffle his feet." The state introduced witnesses who testified that when the court was at recess and the jury was not present appellant would cease to "throw his head about, shake his hands, and shuffle his feet." These antics in the presence of the jury were performed evidently to assist his plea of insanity, and there was no error in permitting the state to show that they did not take place when he was not in view of the jury.

It is shown by one bill that on one occasion the sheriff did not take the handcuffs off the prisoner until the jury was being brought in and were taking their seats. There is nothing in the bill to show that the jury saw the sheriff take the handcuffs off of appellant. The court says it is usual and customary in bringing prisoners from the jail to the courtroom to handcuff them, but when in the courtroom they are taken off. Only in this one instance did the jury arrive in the courtroom before the handcuffs had been removed, and in this instance it is not disclosed that the jury saw that the prisoner was handcuffed. Prisoners should never be kept manacled while being tried, unless absolutely...