Trevino v. State

• Decision Date: 23 June 1897
• Docket Number: No. 1,102.,1,102.
• Citation: 41 S.W. 608
• Parties: TREVINO v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 608

TREVINO v. STATE.

No. 1,102.

Court of Criminal Appeals of Texas.

June 23, 1897.

Appeal from district court, De Witt county; S. F. Grimes, Judge.

Odacio Trevino appeals from a conviction of murder in the second degree. Affirmed.

Mann Trice, for the State.

HURT, P. J.

Appellant was indicted for the murder of Juan Rodreguez, by shooting him with a pistol. He was convicted of murder in the second degree, and his punishment assessed at 25 years' confinement in the penitentiary.

Felix Trevino, a brother of the defendant, was also indicted for this murder. Deceased and Soledad Trevino, sister of these parties, were engaged to be married. Her brothers objected to the marriage. Soledad, with her brothers, was staying on the premises of one Johnson. Cruz Rodreguez, a friend, but not related, to the deceased, on the night of the homicide, went to Johnson's after the girl, she and the deceased having made arrangements to elope, and go to Cuero on that night, for the purpose of securing a marriage license, and to be married. Cruz Rodreguez went to Johnson's after Soledad, in accordance with this agreement; and upon this trial Soledad was a witness for the state, and testified that while she and Cruz were at the creek that night, waiting for the deceased, she heard three shots; that Cruz was with her at the time the shots were fired. All of the testimony is to the effect that three shots were fired. No person witnessed the homicide. A few days after appellant was convicted, his brother Felix was placed upon trial for this murder, and Soledad was a witness in his behalf. Upon this trial she testified: That on the night of the homicide, before she and Cruz went to the creek, they stopped at the gate, and Cruz left her, stating he would go and find the deceased. That then he had no pistol or knife that she saw, and no bloodstains on his clothing; that he remained away from her two or three hours. While he was gone, she heard three pistol shots. That, in about a half hour thereafter, he returned. He had blood on his sleeve, from his elbow to his wristband, and blood on his right breeches' leg, and had a large pistol and knife. On his return, Cruz said to her that "the deceased was not coming, that he would keep her in his [deceased's] place." She refused to accept this proposition, and he told her, if she ever mentioned what he had said, or that he was absent from her during the night, he would kill her. That they then went to Mr. Johnson's, and tried to stay all night. That she did not testify to this before, because she was afraid Cruz would kill her. That she never mentioned this but twice before, and that was to the interpreter Moro, and to the county attorney, and in both instances was subsequent to the first trial, and just prior to this trial. In motion for a new trial, appellant brings all of this matter forward as newly-discovered evidence, insisting that upon another trial this testimony would probably change the verdict of the jury.

If what Soledad swore on the second trial— that is, on the trial of Felix Trevino—be true, it was very important testimony, calculated to produce a different result. The question before us, however, is as to the probable truth of her last statement. Her brother Felix had the benefit of this testimony, and he was convicted. But, be this as it may, the question, as before stated, is the probable truth of the statement. When we look to all the facts and circumstances in evidence, we are of...