Lyles v. State

• Decision Date: 01 January 1874
• Parties: GEORGE B. LYLES v. THE STATE.
• Court: Texas Supreme Court

41 Tex. 172

GEORGE B. LYLES

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from El Paso. Tried below before the Hon. S. B. Newcomb.

On the 23d of January, 1874, George B. Lyles was indicted for the murder of José Maria Gamboa. William Brown, Mauricia Lais, Antonio Nieto, Ambrosio Acosta, and Calistra Salis were charged in the same indictment as principals, who were present, aiding and assisting by their acts, &c., in the murder. Brown, Nieto, and Lyles were jointly tried before a jury, nine of whom did not understand the English language, and who were objected to as jurors by the defendants. The charge of the court was written in the English language, and was translated to the jury (orally) by an interpreter; defendants' counsel insisted that it should also be written in Spanish, which the court refused to have done.

The evidence for the State consisted alone of the testimony of Juan Gamboa, a brother of the deceased, who testified that on the 26th of October, 1873, José Maria Gamboa and the witness, both armed, went to where some peons were at work upon a ditch, when the deceased asked them by whose order they were at work. On being told that they worked for Lyles, they were ordered by deceased to desist from work. The same order was given by him to Mauricia Lais, who was making adobes near by. Lais left, avowing that he wanted no trouble, and would see Lyles about the matter. The two brothers then returned to where the peons had ceased work, and awaited the return of Lais, who came with Lyles, Brown, Acosta, and Nieto. As they approached, the brothers rose up, when they were within sixty yards, and stood some ten yards apart. Brown was in advance, and stopped three yards from witness. Lais went to where the peons were at the ditch, while Lyles walked in between the two brothers and stood on the bank of the ditch. This witness stated that, standing thus, Lyles asked the peons who had stopped their work, to which they responded that José Maria Gamboa had stopped them, because he said the land belonged to them; that deceased then said, “Lyles, I did not come here to fight, but to regulate and settle this matter peacefully;” that Lyles made no response, but stood for a moment with his head down; in another instant he raised his gun and fired twice, when deceased fell, after running a short distance, with seventeen bullet holes through his body; that deceased was armed with a rifle, which he carried on account of Indians, but which he did not attempt to use, and which was afterwards picked up uncocked; that when Lyles fired witness was seized by Antonio Nieto from behind, and both arms held, while Brown, in front of him, demanded his pistol, which witness gave to Ambrosio Acosta; that he then ran to his brother, but was outrun by Brown, who took the rifle of deceased.

The witnesses for the defense testified that Lyles had been in possession of the land which gave origin to the difficulty two years; that as early as the 7th of October the deceased, with eight or ten armed men, had gone on Lyles' place and taken forcible possession of corn belonging to Lyles, which was in Nieto's charge. But one witness was examined for the defense who witnessed the homicide, who testified that when Lyles approached the ditch and inquired of the peons who had stopped their work, his gun was resting in the hollow of his left arm, his right hand holding the breech; that when the men responded that José Maria Gamboa had stopped them, deceased raised his rifle as if intending to fire at Lyles, who, turning at the same instant, fired first at deceased, who turned the right shoulder to him as if to dodge, and received the shot in his right shoulder-blade; that at the same time Juan Gamboa attempted to draw his pistol, when he was siezed from behind to prevent its being used; that Lyles cocked his gun when approaching the ditch some twenty paces from it; that deceased cocked his gun when Lyles was sixty yards from the ditch; that the movements of Brown and Nieto were to prevent trouble, and not to make it. This witness testified that Lyles made a crop on the land in controversy in 1873, with the knowledge and without objection from the Gamboas until October 7. The witness Seaton testified that he heard the deceased say that he intended to have the land if he had to take it with his hand on his “sentura.” (This is a Mexican provincialism, usually uttered with the action of putting the hand on the side where the pistols are worn.) It was shown that Lyles' character as a peaceable man was good. Brown and Nieto were found by the verdict of the jury ““not guilty,” and Lyles guilty of murder in the second degree, and his punishment fixed at five years in the penitentiary.

In the motion for new trial, defendant relied, among other grounds, on the fact that his co-defendants, Brown and Nieto, were material witnesses for him, whose testimony could not be procured on account of the joint trial. Their affidavits, which accompanied the motion, were to the effect that they went with Lyles from his house to where the peons were at work in the ditch, not knowing when they started that the Gamboas were at the ditch, of which they were told by Lais, who met them; that when within fifty steps of deceased, they saw him raise his rifle, cock it, and put it on the ground again, covering the view of the lock with his leg, and holding the breach of the gun partly between his legs; that the brother, Juan Gamboa, took his position a short distance from his brother and facing him; that Lyles passed between them, holding his gun resting on the left arm, and asked his peons who had stopped their work; that simultaneous with their reply, the deceased answered that he had stopped them, and at the same time raised his gun, the muzzle pointed to one side of Lyles; that at Gamboa's reply, Lyles turned partly around, which brought the muzzle of his gun towards Gamboa, and seeing then Gamboa's position, fired at him.

The instructions had failed to define the offense of manslaughter, the court refused the motion for new trial, and Lyles appealed.

Coldwell and Zabreskie, for appellant.

George Clark, Attorney General, for the State.

DEVINE, ASSOCIATE JUSTICE.

The appellant, George B. Lyles, was indicted, with four others, who were charged at the January term, 1874, in the District Court of El Paso county, as accessories with Lyles in the murder of José Maria Gamboa, on the 27th of October, 1873. The case being called for trial, one of the parties charged as an accessory was discharged, and the case dismissed as to him. On the close of the evidence, the court, on motion, directed the jury to render a verdict of not guilty as to another of the defendants, there being no evidence against him, which was immediately done, and the accused discharged from custody. The jury, after receiving the charge of the court, rendered a verdict of guilty of murder in the second degree against appellant Lyles, and a verdict of not guilty as to the other defendants, William Brown and Antonio Nieto. The court overruled defendant's motion for a new trial, and the cause is now presented for our revision on the grounds set forth in the motion for a new trial, and accompanying affidavits and the exceptions of defendant to the ruling of the court before and during the trial of the cause. So much of the bills of exceptions taken by defendant's counsel will be noticed as are deemed material to the decision of this case. The first bill of exceptions states, “while the jury was being impaneled to try said cause, the counsel for the defendant moved that no one be permitted to act as a juror who did not understand the English language, and the court overruled and refused said motion, and permitted nine jurors to sit upon said cause who did not speak nor understand the English language, to which ruling of the court defendant's counsel objected at the time,” &c., &c.

The accused was entitled to a jury to...