Trevino v. State

• Decision Date: 19 November 1913
• Parties: TREVINO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 108

161 S.W. 108

TREVINO v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1913.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Alvino Trevino was convicted of killing by cutting with a knife, and he appeals. Reversed and remanded.

Chambers & Watson and Dwyer & Dwyer, all of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted for killing Brigido Gaudino by cutting him with a knife; his punishment being assessed at five years' confinement in the penitentiary.

The statement of facts, in substance, shows that appellant and Martinez lived near what is called the First Mission below the city of San Antonio. Martinez owned a buggy and a mule. In the evening he hitched this mule to the buggy, and he and appellant drove into the city of San Antonio, to a wagon yard, took the mule from the buggy, leaving the harness on the mule, and hitched the animal. They went thence to a saloon and drank two or three schooners of beer. From that point they went to what they called a sporting house and danced with the girls. After dancing a while they concluded to return home, and went to the wagon yard to hitch their team. In the wagon yard somewhere this trouble occurred. The witnesses differ as to the place and circumstances. Some of the state's witnesses testified they heard a scuffling by some men behind a water tank and heard a lick. The parties scattered and went away. Martinez turned state's evidence, and his case was dismissed and his testimony used. After giving an account of where he lived, and the distance from the city, he narrates the fact that on the evening of October 12, 1912, he was with defendant, who went with him in his buggy to San Antonio. He was driving a mule. He went to the campyard of Fernandez on Matamoras and Santa Rosa streets, reaching there before dark. They unhitched the mule from the buggy, and tied it in the campyard, but did not take the harness off. They went to a sporting house and danced with the girls, staying there until about seven o'clock. There they met Vidal Aguilar who also danced with the girls; thence they went to a saloon directly in front of Fernandez's store. He says that the three, defendant, Aguilar and himself remained about 15 or 20 minutes in the saloon and had two or three rounds of beer, smoking cigarettes in the meantime. They left the saloon, went to the campyard, and hitched up the mule with a view of going home. The three left the saloon at the same time and in the following order: "I led the way; Vidal Aguilar was next, and Alvino Trevino, the defendant, was third. We entered Domingo Fernandez's campyard in this same order. It was dark at that time, and about 7:30 o'clock in the evening. I passed some one in the campyard, but do not know who it was, because I could not recognize him on account of the darkness. I went on to where the mule was, to hitch her up, and the defendant came up and said he had cut some one. Vidal Aguilar went on ahead of us out of the campyard, and the defendant and I hitching up the buggy, drove out of the campyard in a different direction to what we drove in, and went on towards home. After going a piece, we caught up with Vidal Aguilar, and he got in the buggy with us. We then drove slowly down South Flores street, until we reached the depot, where we were stopped by some police officers, who arrested us, and we were brought back to town, and placed in the city hall, all three of us. * * * I saw the defendant strike the person I passed this way (illustrating as one would thrust with a knife). It was after we had left the campyard and picked up Aguilar that the defendant said, `I cut him.'" On cross-examination he says he made a trade with the state by which he was to be immuned from punishment on condition he testify. This witness contradicts the state's witness Dunbar about some matters that occurred, which we deem unnecessary to state. The defendant testified practically, as did the witness Martinez, as to their place of residence, going to the city, dancing with the girls, drinking beer and going to the wagon yard, and the order of their going. He then states: "On passing through the campyard I heard some one say, `Are you Antonio Martinez?' and Antonio Martinez replied, `No,' whereupon the party grabbed a hold of him and then began to scuffle, and I thought he was trying to rob Antonio Martinez, as he had his arms around him, and I rushed up to where he was, after having opened up my knife, to see what he was doing to my companion, Antonio Martinez. When I got there, which was in a few seconds, I put my hand on his shoulder and said, `What do you mean?' and he turned and let go of Antonio Martinez and cursed me, in Spanish (which is omitted, but which, translated in English, he says, means), saying that `I was the son of a whore and disgraced,' and at the same time he drew some dark object from his waist, which I took to be a pistol, and he then made towards me, when I cut him with my pocketknife to defend myself. The deceased then went one way and I went...