Lopez v. State

• Decision Date: 08 April 1914
• Docket Number: (No. 2923.)
• Citation: 166 S.W. 154
• Parties: LOPEZ v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 154

LOPEZ v. STATE.

(No. 2923.)

Court of Criminal Appeals of Texas.

April 8, 1914.

Rehearing Denied April 29, 1914.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Manuel Lopez was convicted of manslaughter, and he appeals. Affirmed.

W. K. Saunders, of Belton, Lewis H. Jones, of Rogers, and Mallory B. Blair, of Belton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant appeals from a conviction of manslaughter with the lowest penalty assessed.

The court charged on murder in the first degree, and in the second degree, on manslaughter and self-defense. The evidence was amply sufficient to sustain a conviction of murder in the second degree if the preponderance of the evidence was not to that effect. The state's evidence would show this. The evidence for the defendant would have authorized an acquittal on the ground of self-defense.

The state, by four witnesses, proved up the execution of the written confession of appellant. It was then introduced in evidence. Appellant has some bills to the introduction of the evidence by the four several witnesses who proved up the execution of said confession. They quote substantially, if not literally, the whole of each of the witnesses' testimony on the subject. All this testimony was admissible. Even if there had been any particular portion of the testimony of the respective witnesses inadmissible, none of appellant's bills point out any such matter. The objections are made to the whole of it. Ortiz v. State, 151 S. W. 1057, and authorities there cited. There are many other decisions to the same effect, both before and since the Ortiz Case, unnecessary to cite.

Appellant objected to the testimony of Cypriano Godina, a son of the deceased, as to what the deceased told him, about appellant shooting him, very soon after the shooting. The court, in qualifying the bill states: "This evidence was admitted as res gestæ, the evidence showing that the conversation occurred a few minutes after the shooting." As the bill is qualified, this evidence was clearly admissible as res gestæ.

The court properly permitted the state, in cross-examination of appellant's wife, to ask her about a written statement she had made concerning the killing, the court qualifying appellant's bill on the subject by stating: "The witness was not interrogated about any matter not brought out by the defendant. The state had the written statement of the witness, but it only related to the killing, which she had testified about on direct examination for the defendant." The written statement was not introduced nor offered in evidence, and not shown by this record.

The indictment charged that appellant killed deceased by shooting him with a pistol. The court, in submitting murder in the second degree, used the word "gun" instead of "pistol." Even if the court's using the word "gun" instead of "pistol" was error, it was immaterial, as appellant was acquitted of murder in the second degree, and convicted of manslaughter only. In his charge submitting manslaughter he did not use the word "gun." Under our decisions a gun is a pistol and a pistol a gun. In no event was the court's charge error. Douglass v. State, 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459; Brown v. State, 43 Tex. Cr. R. 296, 65 S. W. 529; Monk v. State, 27 Tex. App. 450, 11 S. W. 460; Johnson v. State, 29 Tex. App. 152, 15 S. W. 647; Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972.

Appellant requested, and the court refused to give, his special charge to this effect: "If you find the confession of defendant was not voluntarily made, or made without a full understanding of the nature of it, you will disregard such confession, and consider it for no purpose." This case was tried some time after the act of April 5, 1913 (Acts 33d Leg. c. 138), amending articles 735, 737, 743, and adding 737a to our Code of Criminal Procedure, was in force. These articles, as amended, in effect require the court to submit his charge to the attorneys for both sides after the evidence is concluded and before the argument begins. The record does not disclose that this was not done in this case, and we must therefore presume it was. The record further does not disclose that appellant, at the proper time, made any objection to the court's charge. Nor does his bill to the refusal of the court to give his said special charge show that it was presented to the court before the argument was begun. If such was the case, the bill should show it. His bill to the refusal of the court to give this charge was not filed until November 18, 1913. The term of court at which appellant was tried adjourned August 21, 1913. Judging by the record in this and other matters, we conclude appellant did not request this charge before the court's charge was...