Posos v. State

• Decision Date: 04 March 1925
• Docket Number: (No. 8857.)
• Citation: 271 S.W. 902
• Parties: POSOS v. STATE.
• Court: Texas Court of Criminal Appeals

271 S.W. 902

POSOS v. STATE.

(No. 8857.)

Court of Criminal Appeals of Texas.

March 4, 1925.

On Motion for Rehearing, April 22, 1925.

Appeal from Criminal District Court, Cameron County; A. W. Cunningham, Judge.

Emilio Posos was convicted of murder, and he appeals. Reversed and remanded on rehearing.

H. L. Yates and Graham, Jones, Williams & Ransome, all of Brownsville, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

The state's theory, as developed from the evidence, is this: Benigno Munoz entered the store of Julian Solis. Gregorio Reyes was present on the outside of the store. Appellant entered, and after making a small purchase, said to Munoz: "Excuse me, I want to talk to you." The two left the store together. A few minutes later, Solis heard a pistol fire. Upon running to the door, he saw Munoz and the appellant scuffling. The witness spoke to them and they separated, going in different directions. It was dark and the exact position of the parties was not discernible by the witness, though he saw their hands above their heads and heard one of them say: "Turn loose, give me the pistol." With these words one wrenched the pistol from the order and they separated. As Munoz was leaving, he said: "Now you will see, I am going to take this pistol and deliver it to the officers." Shortly thereafter appellant came to the witness and asked the whereabouts of Munoz. When he returned, the appellant was drunk and appeared to be angry. Munoz had received a gunshot wound and died on the following day He weighed about 185 pounds while the weight of the appellant was 140 pounds.

Rayes testified but threw no light on the transaction.

According to the witness Galvan, he passed the parties about 25 steps and heard Munoz say, "Turn loose the pistol, you s__n of a b____h." Appellant turned loose, and Munoz said, "I am going to deliver this to the authorities, you s__n of a b____h." He met Julian Solis and Gregorio Reyes, who said, "There goes Benigno Munoz; Emilio Posos shot him." About a block distant, the witness saw the appellant and saw him jump over the fence of the cemetery and came towards the witness and demanded that he deliver the pistol. From the testimony of the witness, it seems that the appellant had a knife in his hand. He had been drinking but was "well on his feet."

The witness Lopez saw Munoz about 8 o'clock at night and was told by him that he had been shot by Posos. Lopez was a constable and Munoz gave him a pistol. Some of the chambers of the pistol were loaded.

Appellant testified that there had been no previous difficulty between him and the deceased; that upon entering the store of Solis he bought a package of tobacco and a bottle of mescal. He and Munoz went out together and drank of the mescal. Appellant offered to sell Munoz the pistol. Munoz grabbed it and said he had no money. Appellant demanded it and a scuffle ensued in which Munoz got possession of the pistol, and in the scuffle the pistol fired without any intent of the appellant that it should do so. He was not aware that Munoz was shot until the following day. Appellant said he had no intention to shoot Munoz; that they were good friends. After the departure of Munoz, appellant drank the remainder of the mescal and became unconscious from its effect.

The court instructed the jury upon the various issues of the case save that of manslaughter, which he gave in a special charge prepared by the appellant's counsel. The defense of accidental homicide was, we think, fairly and adequately embraced in the court's charge. There was no error in refusing to repeat it in the special charge.

In the special charge upon the law of manslaughter, which was prepared by appellant's counsel and given to the jury, the opening sentence was to the effect that if between murder and manslaughter any reasonable doubt existed in the minds of the jury, it should be resolved in favor of the accused. In view of this charge, we think the court committed no error in refusing to single out the question of the appellant's state of mind and tell the jury to resolve any reasonable doubt that might be entertained upon that subject in favor of the accused. This apparently would have been but a repetition.

Several of the bills of exception found in the transcript are but a transcription of the stenographer's notes in question and answer form. Among these are bills Nos. 6, 9, 12, and 13. No permission of the trial court to so frame the bills is found in the record, and so far as we are able to discern, no reason existed for the departure from the statutory rule which requires the bills of exception to be in narrative form. These bills therefore cannot be considered. Article 846, Vernon's Ann. Code Cr. Proc. 1916; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857; Soderman v. State, 97 Tex. Cr. R. 23, 260 S. W. 607.

In bill No. 8 is embraced an objection to the sufficiency of the predicate for the introduction of a dying declaration which seems to have been attempted by the reproduction of the testimony of Miller, who died since giving his testimony on the former hearing. It does not appear from the bill of exceptions that the dying declaration to which the predicate related was introduced in evidence, nor is its contents revealed by the bill. Neither is such information given by the statement of facts. The inability of this court to determine whether there was material error committed in laying the predicate is manifest. To appraise the effect of the ruling, it would be necessary that this court be informed of the nature and substance of the alleged dying declaration and to know that it was received in evidence.

From bill No. 11 it appears that, while the appellant was testifying in his own behalf, two questions were asked, the first being:

"The last time you testified in this cause, you testified that you had shot Munoz because you were defending your property, did you not?"

The other was:

"How do you explain the attack you made on Julian Solis with a knife?"

The objection made was that the questions were unfair in that the appellant, on the former trial, had not testified that he shot Munoz in defense of his property, and no testimony had been given to the effect that the appellant had attacked Solis with a knife. There are but objections, not verified as facts, nor is the bill otherwise self-explanatory. It appears from the statement of facts that the case had been tried several times. Solis, an eyewitness, testified that on the night of the homicide and subsequent thereto, appellant came to him and said. "Hello, s__n of a b__h; where is Benigno Munoz?" He further said: "I want to talk to you; come over here." They were separated by a distance of three or four feet. The witness saw in the hand of the appellant what looked like a big knife. Appellant appeared to be angry.

Appellant testified upon the stand, detailing the circumstances of the encounter in which the deceased lost his life, affirming that the discharge of the pistol was accidental. Responding to the first question propounded, appellant denied that he had ever testified that he shot Munoz in order to protect his property. The state did not impeach him upon that subject. Whether the record upon the former trial was in a condition to contradict him is not disclosed, but this record contains the appellant's unchallenged denial that he gave the testimony implied in the question to which the objection was addressed.

Appellant testified on direct examination that, after the homicide, he became so intoxicated that he lost his mind. Having thus testified in detail as to the incidents of the homicide and claiming that after the homicide he became unconscious from the use of drink, we think it was not out of place that he was asked to explain his conduct towards the witness Solis. As stated above, in its recital of the surrounding facts, the bill is too meager to enable us to value it, and for that reason it fails to show error. However, in looking at the facts, we are of the opinion that if the bill were complete, the result would be the same.

After giving the necessary definitions pertaining to the offense of murder in the first paragraph of the charge, the court, in the second...