West v. State

• Decision Date: 12 March 1930
• Docket Number: No. 13085.,13085.
• Citation: 34 S.W.2d 253
• Parties: WEST et al. v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W.2d 253

WEST et al. v. STATE.

No. 13085.

Court of Criminal Appeals of Texas.

March 12, 1930.

Rehearing Denied December 10, 1930.

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

R. J. West and another were convicted of murder, and they appeal.

Judgment reformed and affirmed.

John A. Pope, Bismark Pope, D. M. Valdez, M. J. Raymond, and John A. Pope, Jr., all of Laredo, and C. C. Thomas, of Cotulla, for appellants.

R. D. Wright, of Laredo, Robert Lee Bobbitt and Galloway Calhoun, both of Austin, and A. A. Dawson, State's Atty., of Canton, for the State.

CHRISTIAN, J.

The indictment contained several counts, the first count alone having been submitted to the jury. It was charged therein that appellants, "acting together, did then and there voluntarily and with malice aforethought kill Harry B. Williams by then and there choking him to death with their hands." A joint trial resulted in the assessment of a penalty of life imprisonment against appellant West, and twenty years confinement in the penitentiary against appellant Hernandez.

The state relied upon circumstantial evidence, the sufficiency of which appellants question.

To the point that deceased, Harry B. Williams, met a violent death at the hands of another, the circumstances are convincing. Deceased was a newspaper reporter for the Laredo Times. Buck Hood was an employee of the same paper. Hood and deceased went to the Commercial Hotel, an assignation house, in Laredo, shortly after midnight of January 18, 1929. In this house deceased was last seen alive some time between midnight and 12:30 in the morning. On February 18, 1929, the body of deceased was found in the Rio Grande river near Laredo. There was no water in the lungs. The tongue was protruding from the mouth. A physician performed an autopsy. He testified that deceased was dead before his body entered the water; that if he had drowned the lungs would have been filled with water; and that the protruding tongue indicated that human hands had choked deceased to death. The body was in a state of decomposition and other marks of violence could not be detected. The body was positively identified as being that of Harry B. Williams.

It is the rule that circumstantial evidence may be sufficient to show that the death of the deceased was caused by violence inflicted by another. Branch's Annotated Penal Code, section 1890; Morris v. State, 30 Tex. Cr. App. 95, 16 S. W. 757; Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251; Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Lucas v. State, 69 Tex. Cr. R. 269, 155 S. W. 527. The opinion is expressed that the circumstances are sufficient to establish the fact that some person or persons, by the use of their hands, choked deceased to death, and cast his body into the river. A criminal act resulting in the death of deceased having been shown by sufficient evidence, it must be determined before a conviction can stand that the circumstances are sufficient when the measure of the law is applied to show the agency of the appellants in the commission of such act. The corpus delicti consists of two things: First, a criminal act, and, second, the agency of the accused in the commission of such act. Section 1890, Branch's Annotated Penal Code; Lovelady v. State, 14 Tex. App. 560; Wilson v. State, 41 Tex. Cr. R. 180, 53 S. W. 122; Gay v. State, 42 Tex. Cr. R. 456, 60 S. W. 771; Williams v. State (Tex. Cr. App.) 65 S. W. 1060. The state having relied upon circumstantial evidence, the circumstances must exclude every other reasonable hypothesis except that of the guilt of the appellants, and if the proof only amounts to a strong suspicion or mere probability of guilt, the conviction cannot stand. Branch's Annotated Penal Code, Section 1877; Pogue v. State, 12 Tex. App. 283; Hogan v. State, 13 Tex. App. 319; Kunde v. State, 22 Tex. App. 99, 3 S. W. 325; Gay v. State, 42 Tex. Cr. R. 450, 60 S. W. 771; Hernandez v. State (Tex. Cr. App.) 72 S. W. 840. In his annotated Penal Code, Mr. Branch states the rule as follows:

"To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it, or was a participant in its commission. There must be a legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him."

Touching the criminal agency of the appellants, the evidence is as follows: Appellant West was a deputy constable in Laredo, and appellant Hernandez was a city policeman. Love's farm was a few miles from Laredo. On the night of January 18, 1929, at about 9:30 Russell Love and another went to the police station in Laredo and invited appellants to a party to be given at Love's farm. It was suggested that appellants bring some girls with them. Arrangements were also made for taking some liquor to the party. The Commercial Hotel in Laredo was an assignation house. On the night of January 18, 1929, the occupants of the hotel were Maria Alatorres, the proprietress, Alicia McCleod, Louisa Garcia Fee, and Angela Gomez. To this house of prostitution the appellants went for the purpose of getting some girls to go with them to the party. According to the testimony of witnesses for the state, the first visit of appellants to the hotel was between 9:30 and 10:00 o'clock on the night in question, and they remained about twenty minutes. Appellants requested Louisa Garcia Fee and Angela Gomez to accompany them to the party. The proprietress of the house demurred, and the girls declined to go. According to the testimony of one of the occupants of the house, appellant West became very angry, called the proprietress "an old bawdyhouse manager and s____ of a b____," and told the inmates of the house that he was going to put them all in jail on the following day. Appellants were drinking intoxicating liquor.

It was the version of the state's witnesses that appellants left the hotel and went to Love's farm, arriving there about 10:30 p. m. The owner of the farm testified that he referred to the fact that appellants had been unable to get any girls; that appellant West replied that the girls would not come out and that he "threw all the s____s of b____s in jail." Another witness testified that one of the parties present suggested to appellant West that he was "a hell of a rustler."

While appellants were at Love's farm Angela Gomez left the Commercial Hotel in company with one Johns. According to the testimony of the owner of the farm, appellants left the farm about 11:45 p. m. and returned to town. They again went to the Commercial Hotel, arriving there, according to state's witnesses, about midnight. Angela Gomez and Johns had not returned. At this time appellants, Maria Alatorres, Louisa Garcia Fee, and Alicia McCleod were the only persons in the house, according to the testimony of the state. Louisa Garcia Fee testified that appellant West became very angry when he learned that Angela Gomez had left with Johns; that West said that if he could get hold of Johns and Angela he was going to put them in jail, as Angela had gone out with Johns and had refused to go with him. We quote the language of the witness: "And he kept on using curse words and making threats that they were going to put us in jail and that we were not going to stay with anyone who came there." The state's version at this point, according to the witnesses, was that Louisa Garcia Fee and appellant Hernandez were sitting on one side of a bed in a room in the hotel and that appellant West and Alicia McCleod were sitting on the other side of the same bed; that while said parties were in the room together deceased and his friend Buck Hood entered the hotel; that a short time after midnight the proprietress called Alicia McCleod from the room to meet Hood, who desired to have sexual relations with her; that after talking to Hood for a few minutes, Alicia McCleod returned to the room where appellants and Louisa Garcia Fee were; that she came out in a short while and went with Hood to another room, where they remained ten or fifteen minutes.

The lobby of the hotel and the room referred to were on the same floor. When Hood went to the room with Alicia deceased was sitting in a chair in the lobby where he promised to wait until Hood was ready to leave the hotel. The lobby adjoined the room occupied by appellants and Louisa Garcia Fee. Hood and Alicia went to a room in another part of the hotel, there being two or three partitions between this room and the room occupied by deceased. At this point we quote the testimony of Louisa Garcia Fee as follows:

"The second time these defendants came back it was about a quarter past twelve. When they came back the second time there were present Maria, myself and Alicia. I do not remember of anybody else being there in that house at that time. At that time West was very angry and said that anywhere that he could get hold of Angela and Henry Johns he was going to put them in jail because she had been able to go out with him and we would not go out with them. And he kept on using curse words and making threats that they were going to put us in jail and we were not going to stay with anyone who came there. West was armed at that time— he had something around here and had a pistol. I saw the pistol. The last time he came he pulled that pistol out on me but not at this time. They came back there this time about 12:15, I think. Then at about that time two fellows came there; one was the one that was lost, Williams, and the other fellow somebody else. When these two men came in Hernandez and I were sitting on the bed, and West and Alicia was on one side, and then Maria called Alicia to her, and then Alicia went to a room with them. Then these two remained with...