Serrato v. State

• Decision Date: 06 May 1914
• Docket Number: (No. 2990.)
• Citation: 171 S.W. 1133
• Parties: SERRATO v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 1133

SERRATO v. STATE.

(No. 2990.)

Court of Criminal Appeals of Texas.

May 6, 1914.

Rehearing Denied June 3, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Frio County; J. F. Mullally, Judge.

J. A. Serrato was convicted of murder, and he appeals. Affirmed.

R. W. Hudson and J. L. Pranglin, both of Pearsall, Magus Smith, of Jourdanton, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The indictment in this case alleges that:

"The grand jurors, for the county of Dimmit, state aforesaid, duly organized as such at the September term, A. D. 1913, of the district court for said county, upon their oaths in said court present that J. M. Rangel, Leonardo L. Vasquez, Abran Cisneros, Domingo R. Rosas, Bernardino Mendoza, Augennio Alzalde, Luis Mendoza, Lino Gonzales, Miguel P. Martinez, L. R. Ortiz, Jesus Gonzales, J. A. Serrato, Pedro Perales, Delipe Sanchez, Charles Cline, and Dan Daniels, alias Dynamiter Dan, acting together on or about the 11th day of September, A. D. 1913, and anterior to the presentment of this indictment, in the county of Dimmit and state of Texas, did then and there unlawfully, with malice aforethought, kill Candelario Ortiz, by shooting him with a gun."

The venue was changed to Frio county, and a trial had there. The facts would disclose that the sheriff of Dimmit county was informed that guns, ammunition, etc., were being shipped into his county and unloaded at a small station some six miles from the county seat; that strangers were gathering in his county, and he gathered together Deputy Sheriffs Buck and Ortiz and City Marshal White, and the four began an investigation of the matter. Circumstances led them to follow a trail leading to the Capones ranch, and when they arrived near the Capones windmill and a little creek, which had a growth of underbrush on its banks, they waited until daylight, and then the sheriff and city marshall took one trail leading down to the branch, and the two deputy sheriffs took another trail leading in the same direction. Upon turning a bend in the branch Messrs. Buck and Ortiz faced some 18 men with rifles drawn, who captured them and carried them to their camp, where they had guns, pistols, ammunition, cartridges, dynamite, bayonets, and other implements of war. About the time these men arrived at the camp with the two deputies as prisoners, shots were heard in the direction that Sheriff Gardner and Marshal White had gone, and some of those who had captured the two deputies rushed over in that direction, while others held the two deputy sheriffs. Shortly they were called over to where the others were, and there lay a dead Mexican on whose person was afterwards found a red flag with the words: "Partido Liberal Mexicano. Tierra y Libertad" — emblazoned thereon, meaning, "The Liberal Party Mexico. Land and Liberty." There was also found in the creek at the camp later a bugle. The entire party capturing the deputy sheriffs were Mexicans, except one, an American named Cline. They had a captain elected named Rangel. When the party got over to where the dead Mexican was, the sheriff and marshal were seen at some distance, and Cline called to the sheriff and marshal to come there. As they started to do so Deputy Sheriff Buck called to them not to do so, and when he did so a general fusillade was opened on the sheriff and city marshal, who fled. Mr. Buck testifies that appellant was one of the men with rifles who captured Ortiz and himself, and that he also was one of the men who fired on the sheriff and marshal. Appellant admits his presence, but denies that he was one of the party who captured the two deputies, and denies that he fired on the sheriff. Seeing that their rendezvous was discovered, Capt. Rangel and all of his men made arrangements to at once depart in the direction of the Mexico line. They each took a rifle and pistol and a lot of ammunition and supplies, and, tying Buck's and Ortiz's hands behind them, loaded them with supplies, making pack horses of them. They traveled through the brush some three or four miles. When they came to a bank, a hard climb, Ortiz attempted to climb, but failed to do so, Buck succeeding in doing so. Buck says at the time they were captured three or four of the captors told Capt. Rangel that Deputy Sheriff Ortiz was one of the men who had been informing on them, when the captain remarked he would inform no more; that they would kill him. After his ineffectual attempt to climb the hill, Ortiz remarked that he could not climb, loaded as he was, with his hands tied behind him, and if they were going to kill him, they had just as well do it then. The captain ordered all except four men to proceed with Mr. Buck, and after they had traveled some 40 steps Mr. Buck and those with him heard a volley of shots, and Capt. Rangel and those remaining with him shortly thereafter joined the others. Ortiz was found at this point that night with five bullet wounds in his body any one of three of them being fatal. The party proceeded then on their way, forcing Buck along.

The sheriff, when he escaped, proceeded to organize a posse, and that evening about 4 o'clock Capt. Rangel and his band, after a parley, agreed to deliver Mr. Buck to the posse, if the posse would agree not to pursue the captain and his men no further, and would give them a statement that they were to be allowed a passport. This was agreed to, and Mr. Buck was delivered to the posse. At this time the posse was informed that Ortiz was tied to a tree near the point where Buck had last seen him. The posse departed and sent men to relieve Ortiz. When they got to the point designated they found him dead, as hereinbefore stated. Another posse was organized by the sheriff, and Capt. Rangel and his company again pursued, this time Lieut. Allen of the United States Army, and some of his soldiers, joining in the pursuit. The next day they were overtaken near the line of Mexico. As the posse approached two volleys were fired at the posse; these shots were returned, when Capt. Rangel and his men raised a flag of truce and surrendered. There were 2 dead and 13 of the men named in the indictment captured. Appellant was seen to flee while the shooting was going on, and the next day he was found near this place by Mr. Carrigan, who took charge of him, and he was incarcerated in jail with the others. Cline said that their "orders were to shoot anything except American soldiers; to kill any sheriff's posse, or any citizens that might come — to fight to a finish." It is conclusively shown that this band had organized to invade our sister republic, Mexico, for exactly what purpose is not disclosed by the record, except that it was an armed force.

As the transcript of the proceedings from the district court of Dimmit county to the district court in Frio county only showed that "on this the 15th day of September, 1913, the honorable grand jury appeared in open court and presented the following true bill of indictment: No. 553, State of Texas v. J. M. Rangel et al." — a motion was made in the district court of Frio county, after change of venue, to abate or quash the indictment, on the ground that the entry made in the minutes of the district court of Dimmit county as disclosed by the transcript did not show that "a quorum of the grand jury" was present when the indictment was presented. The language used in the minutes would, taken literally, embrace the entire grand jury, for it says "the honorable grand jury appeared in open court and presented the indictment," and article 232 of the Code of Crim. Proc. says:

"An indictment is to be considered as `presented' when it has been duly acted upon by the grand jury and received by the court."

The entry made would be in literal compliance with this law, but appellant insists that rule 110, adopted by the Supreme Court (142 S. W. xxv), provides: "The record should show, and it should appear in the transcripts of the record for the Court of Criminal Appeals: First. That the indictment was presented in open court, a quorum of the grand jury being present," and that as this entry in the minutes does not specifically state that a quorum of the grand jury was present, the indictment should be abated. If this motion had been made in the court where the indictment was returned, it would have been proper to have the entry made in the minutes amended so as to conform to the requirements of the rule, but the question here presented is, Can this motion be made in the district court of Frio county, after the venue had been changed, which court would have no control over, nor power to order or permit amendments to, the minutes of the district court of Dimmit county? Appellant earnestly insists that the motion can be made in the district court of Frio county, and that court would have no option but to abate the indictment. He presents the question at length in a very able and exhaustive brief, and contends that the case of Caldwell v. State, 41 Tex. 86, was rendered when the statute was different from what it now appears to be; that the articles of the Code were amended relating to change of venue in the revision of 1876, and while the rule announced in the Caldwell Case had seemingly been followed in all the decisions since then, yet appellant contends that the rule therein announced is not a proper construction of our present statute, and the Caldwell Case has been followed because the court's attention had not been called to the change in the statute. The principles of law announced in the Caldwell Case by Judge Roberts are not dependent entirely upon statutory enactments, but are in accordance with the recognized rules of law governing all such matters — that motions which do not go to the merits of the case or substance of the indictment, but which go only to some matter of procedure, such as the entry of an order, and which could have been amended,...