Villareal v. State

• Decision Date: 01 December 1915
• Docket Number: (No. 3838.)
• Parties: VILLAREAL et al. v. STATE.
• Court: Texas Court of Criminal Appeals

182 S.W. 322

VILLAREAL et al. v. STATE.

(No. 3838.)

Court of Criminal Appeals of Texas.

December 1, 1915.

Rehearing Denied December 22, 1915.

Dissenting Opinion, January 19, 1916.

Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.

Gorgonio Villareal and another were convicted of murder, and they appeal. Affirmed as to the defendant named, and reversed and remanded as to the other defendant.

Pope & Sutherland, of Corpus Christi, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Both appellants were convicted of murder, and their punishment assessed at five years' confinement in the penitentiary each.

The most serious question in the case is the one contending that the evidence is insufficient to sustain the conviction, and as to the defendant Praxedis Villareal, we think such contention must be sustained. Mere presence at the time and place of the homicide will not in and of itself alone constitute one a principal offender. Such presence is a circumstance tending to support a finding that one is a principal, but there must be other facts and circumstances in evidence tending to show that one aided by acts or encouraged by words or gestures the person who actually committed the unlawful act before a conviction can be sustained. Article 75, P. C. 1911; Burrell v. State, 18 Tex. 713; Golden v. State, 18 Tex. App. 637; Noftsinger v. State, 7 Tex. App. 302; Alford v. State, 31 Tex. Cr. R. 299, 20 S. W. 553. In this case the most the evidence would tend to show is that Praxedis Villareal may have been present when his son Gorgonio Villareal fired the fatal shot, if he shot James Rowland, but all the evidence, both for the state and for the defendants, would show the most kindly and friendly relations existing between deceased and defendant Praxedis Villareal, and would exclude the idea that he for any reason would participate in the murder. All the state can insist that the evidence would suggest is, that perhaps he was present and witnessed the homicide, afterwards concealing the fact that his son Gorgonio had shot Rowland.

By article 87 it is provided that a father, by concealing the fact that his son has committed a crime, is not guilty as an accessory. To make one a principal offender he must be shown by circumstantial evidence or otherwise to have been guilty of some overt act or conduct prior to or at the time of the homicide.

As to Gorgonio Villareal, the record presents a wholly different case. By the witnesses Refugia Rodriguez, Toribia Ortiz, and Mariana Guzman, it is shown that Gorgonio Villareal not only desired the death of deceased, but besought Refugia Rodriguez and Mariana Guzman to obtain poison for him, offering to pay them $25 to do so, in order that he might have it administered to Rowland. All three of the witnesses testify to a state of facts that would show that appellant Gorgonio Villareal was intimate with the wife of deceased, and desired to have him killed that he might secure his wife. A sufficient motive is shown by the state's testimony for him to have committed the crime, and that he had it in contemplation. Appellants' own witnesses testify that ill will existed, but they place it on a different ground. They say that Gorgonio formerly was a frequent visitor at the home of James Rowland, but that Rowland had stopped him from coming to his home. They gave as a reason for this that a mule or a horse had been stolen from Rowland, and he believed that appellant, with another, had stolen the animal, and for this reason had stopped appellant from coming to his home. Appellant Gorgonio says he had not been at Rowland's home for some months. However, a state's witness, Annie Rowland, testifies to seeing him at her father's home on two occasions shortly before the homicide, when her father was not at home. Lawrence Morris testifies that he was staying at the home of appellants, and that on Wednesday before the homicide occurred on Sunday, that Gorgonio in a conversation with him said that he wanted to get Jim Rowland out of the way so that he could have Rowland's wife. Morris was a cousin of Gorgonio by marriage, and detailed the conversation, but the above is the substance of it. He also says that on the day of the homicide Gorgonio told him he was going to Ricardo (the home of Jim Rowland) and get deceased out of the way. That he saw Gorgonio when he left home and that he went in a buggy, and carried with him his Winchester rifle — a 44 caliber rifle. Morris says Jesus Gallardo was horseback, and went along with Gorgonio. On Monday morning he had a conversation with Gorgonio, in the presence of Gallardo, and that Gorgonio told him he had gone to Ricardo and got Jim Rowland out of the way. The other testimony shows that Jim Rowland on that Sunday night had been killed, being shot with a rifle ball of 44 caliber. Morris testifies that appellant drove off in a buggy, and this buggy was by the sheriff traced into the yard of deceased, and back to appellant's home.

Appellant by his testimony seeks to explain why the buggy was sent to Rowland's home. He denies driving it, and says that Gallardo drove it after his father, Praxedis Villareal, and he is supported in this testimony by his father, mother, and other witnesses. He also testifies that state's witness Morris had borrowed his 44 caliber Winchester rifle, and had it in his, Morris', possession on the Sunday that Rowland was killed. In this he is supported by the testimony of his mother and other relatives. The jury evidently accepted the testimony of Morris, and did not believe the alibi testimony of appellant Gorgonio, and the explanation of why the buggy was driven to Rowland's home, and did not believe that Morris was in possession of the rifle on that Sunday night, and while Lawrence Morris' reputation for truth and veracity was severely assailed, and he was contradicted by appellants' witnesses, are we authorized to hold that such evidence is unworthy of belief, when the jury who tried appellant Gorgonio and the district judge who presided at the trial evidently thought it worthy of credence? If the testimony of Lawrence Morris is true, with the other facts and circumstances in evidence, the testimony authorized the conviction of Gorgonio Villareal, and we will not disturb the verdict as to him. Another strange circumstance in the case is that Jesus Gallardo, who was jointly indicted with appellants, charged with this murder, and who Lawrence Morris says went with appellant Gorgonio when he, Morris, was told by appellant that he was going to Ricardo and get deceased out of the way, and was with appellant when appellant told Morris the next morning that he had gotten deceased out of the way, disappeared on that Monday morning and has not been seen nor heard of since that time.

The court permitted a sufficiently broad scope in the cross-examination and impeachment of the witness Refugia Rodriguez, and there was no error committed in sustaining the questions propounded as shown by bills of exception Nos. 1 and 2, and the same may be said as to the witness Toribia Ortiz in bills Nos. 3, 4, and 5. These bills are very incomplete, some of them showing the questions which were not permitted to be propounded, do not show what the answer would have been, nor, where the questions were permitted to be propounded, what answer the witness really would have made.

As to the questions propounded to the witness Lawrence Morris and questions propounded to Mrs. James Rowland on cross-examination, the answers of the witnesses are not given, nor is it stated what could have been proven by them, nor the substance of what was proven or expected to be proven.

As presented in this record, bills Nos. 6, 7, 8, and 9 present no error, and if they were more full and complete, under the record before us no error would be presented.

It was permissible to elicit from appellant Gorgonio Villareal that he was under indictment for horse theft as affecting his credit as a witness, he having testified in his own behalf.

The only other question presented by the record is an affidavit of one of the jurors, S. L. Cotten, seeking to impeach the verdict. He says that the jury when they first retired stood 7 for conviction, and 5 for acquittal. That after the case was discussed they all voted for conviction. That what induced him to vote for conviction was that he and most of the jurymen believed that Lawrence Morris killed the deceased, and that the defendants in this case knew something of the crime, and if they were convicted they would tell what they knew, and in such event a pardon could be secured. He states that he voted guilty by ballot, and also when the jury was polled, but he did not believe the defendants guilty. A juryman will not be thus permitted to impeach his verdict after being discharged and permitted to mingle with the outside world. Such has been the unbroken rule of decision in this court. Johnson v. State, 27 Tex. 758; Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Henry v. State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74, and other cases cited in section 1151 of White's Ann. Code Cr. Proc.

The judgment is reversed and remanded as to Praxedis Villareal, and affirmed as to Gorgonio Villareal.

DAVIDSON, J. (dissenting).

I concur in the reversal as to the elder Villareal, and I further believe that the judgment ought to have been reversed as to Gorgonio Villareal. The evidence places the elder Villareal in the vicinity of where the homicide occurred and shortly prior to the tragedy, in company with Jesus Gallardo. The state sought to show, and largely predicated its case upon the fact, that the parties who did the killing were in a buggy. The elder Villareal and Gallardo were in a buggy, and are supposed to have left the ranch where the homicide occurred shortly prior to the killing the same evening....