Marta v. State

• Citation: 193 S.W. 323
• Decision Date: 15 November 1916
• Docket Number: (No. 4200.)
• Parties: MARTA et al. v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

193 S.W. 323

MARTA et al. v. STATE.

(No. 4200.)

Court of Criminal Appeals of Texas.

November 15, 1916.

On Motion for Rehearing, December 27, 1916.

On Second Motion for Rehearing, March 28, 1917.

Appeal from Criminal District Court, Travis County; A. S. Fisher, Judge.

Juan Marta and another were jointly convicted of murder, and they appeal. Affirmed.

A. L. Love and B. F. Patterson, both of Austin, for appellants. W. C. Linden, of San Antonio, Jno. W. Hornsby, of Austin, and C. A. Sweeton and C. C. McDonald, Asst. Attys. Gen., for the State.

HARPER, J.

Appellants were jointly tried and convicted of the murder of Eugene Smith, their punishment being assessed at death.

Mr. Smith came to Austin on Saturday, October 2, 1915, bringing some cotton seed and two bales of cotton on his wagon, which he sold on that day. On his way home that night he was shot in the head twice, one ball entering just at the back of the ear, and his body thrown from the wagon. The state's contention is that he was murdered in the perpetration of robbery. The next morning appellants and others were arrested while the sheriff's force was investigating the murder. All arrested were released after the investigation except the appellants, and they were indicted by the grand jury; the indictment being returned on December 24, 1915.

This is a case in which the state relies on circumstantial evidence; no witness for the state seeing the fatal shots fired. The state by its evidence would have appellants see Mr. Smith bringing the cotton seed and cotton to Austin that day, and see him going out of the city towards home. Mr. Smith stopped at John Miller's to pay for some potatoes, and appellants came in the store while Mr. Smith was there and attempted to purchase some cheese and crackers, but had no money. Mr. Smith is then traced to Gus Koehn's, where he stopped and paid a debt he was owing, and made a small purchase. This was introduced as fixing the time Mr. Smith left the city and that appellants were aware of the fact; the time being fixed in the neighborhood of 9 o'clock at night. Hunter Hill's place is some two miles farther on the road Mr. Smith would travel going home, and Will Eppright says he left Hill's at 9:30 o'clock (closing time) and started towards Austin; that he met Mr. Smith on his road home. This was the last time Smith was seen before being shot; his body being found by the side of the road some distance farther on, just beyond Hill's place and Dick White's saloon and restaurant, some three miles from Austin. The exact distance beyond these places where the body was found is not shown by the record, but we would judge it was in the neighborhood of a half or three-quarters of a mile, judging by the map in the record. The body was discovered by four young men, Carl Lingren and others, who left Austin about 10 o'clock, and passed the body, discovering later the team loose, when they went on to Mr. Bergstrom's. They reported to him what they had seen. Mr. Bergstrom got a lantern and they all went back, catching the team and tying it. When they got to the body they did not recognize the man, he being so bloody. They telephoned Sheriff Matthews, who, with Deputy Sheriff Eugene Barbisch, drove out in an automobile, got the wounded man, and brought him to the Seton infirmary for such medical aid as could be administered. The sheriff and his deputy and others returned to the scene and waited for daylight to begin investigation. They discovered where the brake must have been thrown on the wagon as the wheel dragged, and followed this dragged track, finding where blood had dripped on the ground. When they got to where the body had been thrown from the wagon the wheel again began to revolve, and about this place they discovered where two men had jumped from the wagon. They tracked the men to Gilbert's gin, finding a whole cigar and a stub. From this gin the tracks of the two men separated, Sheriff Matthews and others following the track that led to Littlepage's store, where appellant Bonada was found and arrested, he having blood on his clothing and hat. Mr. Gilbert and others followed the other track, and by information received where appellant Juan Marta changed his clothing found and arrested him. The state placed appellants in Miller's place when deceased was in the store; placed them at Hunter Hill's place at 9:30 o'clock, where they purchased beer and two cigars, leaving that place as the saloon closed. It then traced them to Dick White's after 9:30, where they were seen by several; the time of their departure from this place not being fixed absolutely certain. The other circumstances relied on by the state will be recited and discussed hereafter in passing on the bills of exception.

The appellants both testified and both admit being at Miller's and that they attempted to buy cheese, but could not at that time find their money they say they had, and that Mr. Miller refused to sell them. They admit being at Hunter Hill's at 9:30, and that they purchased beer and two cigars. They admit going to Dick White's and going from there to Gilbert's gin, where they spent the night. They admit the cigar and stub found at this gin were the two cigars purchased at Hill's at 9:30. They admit getting up early the next morning and traveling the way the officers say they tracked them to the places where they were arrested. Marta denies any blood being on his clothing, and he gives as an excuse for changing clothes that he got his pantaloons wet in going through the cotton fields from dew. Bonada admits he had blood on his clothing, but explains it by saying his nose had bled on Saturday afternoon while he was in Austin. They admit they were constantly together from the time they left Austin until the next morning.

So a great many of the circumstances proven and relied on by the state became proven facts after the defendants had testified. That Bonada had blood on his clothing when arrested was not denied, but an explanation offered, which the state sought to prove untrue. This was one of the contested issues in the evidence. And while they admit traveling the road from Dick White's to Gilbert's gin and spending the night at the gin, they endeavor to prove that Smith had been murdered before they left Dick White's restaurant. On this issue the evidence is conflicting. Juan Laerma testified that he overtook appellants at a turn in the road near where the body was found and had a conversation with them; that they told him they were waiting for a wagon, and while talking to them, deceased, Mr. Smith, came driving along, when both appellants got in the rear of the wagon, and he galloped on off; that when he got a short distance he heard two shots, but went on home. Appellants testify and admit they met Laerma about the place he says and had a conversation with him, but deny Mr. Smith came along. They say they and Laerma went on down the road. Laerma going on ahead; that they went on down the road and saw an object lying by the side of the road; that a buggy passed them, and then a wagon with negroes passed them, and they tried to get the negroes to let them ride; that they then met an automobile, and this is shown to be the automobile in which Mr. Bergstrom and others were traveling on the way back to the body of deceased.

It is thus seen that the conflict is: The state contends they were on the road waiting for Mr. Smith, got in his wagon, and killed him, robbing him of his money. The appellants contend they did not leave Dick White's in time to have committed the offense, and when they passed along the road some one else had already slain Mr. Smith, as he was lying on the side of the road when they passed. This was a sharply contested issue.

When the state announced ready, appellants moved to continue the case on account of the absence of some half dozen witnesses. The attendance of all of them was secured, except Eugenio Rios. The testimony of this witness would be material to the defense of appellants, but cumulative of the testimony of other witnesses. As this is the first application, the fact the testimony was cumulative would not deprive appellants of the right to continue the case if they used diligence to secure his attendance, but we think the record discloses a lack of diligence. Appellants, as hereinbefore stated, were indicted December 24, 1915. No subpœna was issued for the witness until February 22, 1916, and the sheriff by his return on the process shows he could not find the witness in the county. This was but a short time before the case was set for trial. In the application they state:

"That the witness Rios was a resident of Travis county during the fall of 1915, and, so far as these defendants have been able to ascertain, is still a resident of the county; that there are residing in Travis county, and also in Bexar county, Tex., Mexicans by the name of Rios, and they believe, if given until the next term of court, they will be able to locate the witness."

It is thus seen at the time of the trial appellants did not know the location of the witness, whether he was in Travis county or Bexar county, or at some other point. This information was too indefinite, and in the application it is not shown that appellants had used any diligence to definitely locate the witness; and in the motion for a new trial complaining that the court erred in this respect it is still shown that the location of the witness was not known, and the court was put in possession of no fact which would or could reasonably lead the court to believe the witness could be found if the case was postponed. Under such circumstances there was no error in overruling the motion.

The term of court at which appellants were tried adjourned April 29th. Appellants in November of this year, and after the case was pending in this court and set for hearing, filed an affidavit stating that this witness had been located and to what he would testify. This affidavit...