Rodriquez v. State (150 S.W. 1167, 1912)

HARPER, J.

Appellant was indicted for the murder of one Will Armstrong by the grand jury of Frio county, and, upon a change of venue, it was carried to the Thirty-Seventh district court of Bexar county, and there tried. Appellant was convicted of mur- • der in the second degree, and his punishment assessed at confinement in the penitentiary for the term of 10 years.

The crime alleged occurred in 1903. Immediately after the hilling of Armstrong by appellant, he escaped into Mexico, and was not arrested until some five or six years after the killing. J. C. Campbell testified that on the evening before the killing that night appellant and a Mexican boy by the name of Mateo Andrada were at his store, which was only a short distance from the place of Wm. Armstrong; that appellant stated to-llina (Campbell) that he was going to Wm. Armstrong’s place; that Armstrong owed the-boy Andrada some money, and that he (appellant) was going over there to make Bill settle with- the boy, and he stated that, if he did not pay the boy, “we will do one another up.” Campbell states that he told appellant not to talk that way; that it would get him into trouble; that he saw appellant leave-the store, going in the direction of Bill Armstrong’s house. He repeated the statement of appellant “that they would do one another up,” and that he told appellant he-would have to get out of the store or cut it out. This was about sundown when this-conversation occurred.

There were only two eyewitnesses to the killing, to wit, Tom Armstrong, cousin of' the deceased, and the boy Andrada. Tom Armstrong testified that after dark, about 8 or 9 o’clock at night, appellant came to his camp near deceased’s house, where some-Mexicans who were working for deceased were in camp; that, when he (appellant)came up, deceased was taking orders from the Mexicans for such groceries as they needed so that he might purchase for them; that presently deceased spoke to appellant’s companion ; that later witness and deceased went to the house of deceased’s, and, on reaching the house, they discovered that appellant and his companion Andrada had followed them to the house; that deceased' asked them what they wanted, and the boy Andrada replied, “I want my pay. I want the 40 cents you owe me” — that deceased ■told the boy that be did not bave any money, '.but tbat, if be would come back in a day or two, be would bave tbe money for bim; tbat ■■tbis satisfied tbe boy, but appellant spoke up at tbis time and said, “No; you will pay bim right now.” He repeated tbis several times. Deceased then said to appellant, “I ■don’t owe you anything, and you may keep out of tbis business,” or words to tbat effect. Appellant then replied tbat tbe 40 cents must ■be paid at once. Witness further testified tbat deceased then went back into bis bouse and got bis pistol, and, when be came out, ■appellant grabbed witness, and held bim between tbe deceased and bim (appellant), begging deceased not to shoot bim; tbat deceased assured bim tbat be did not want to shoot him, but tbat be must leave tbe place;"that appellant then turned tbe witness loose, ■and started off to go to tbe camp where tbe Mexican laborers were in tbe pasture of deceased ; tbat deceased then stepped out in ■tbe yard with bis pistol in band, and told •appellant not to go into bis pasture, but to leave bis premises; tbat appellant then Jumped behind a post, either fell .or stooped •down, and shot and killed tbe deceased. Tbe boy Andrada testified substantially as did the witness Tom Armstrong as to bow this ■difficulty occurred, except that be did not understand what was being said, because it was spoken in English.

Tbe first ground in tbe motion complains of tbe action of the court in the organization of tbe jury. As there was no bill of exceptions reserved, tbis is not verified in •a way we would be authorized to review tbe •question.

In tbe next ground complaint is made of tbe sufficiency of tbe evidence to support the verdict; it being claimed tbat it showed appellant acted in self-defense. The rSsumé of the evidence above demonstrates tbat tbe evidence amply supports the verdict; in fact, in our opinion, would sustain a conviction for murder in tbe first degree.

It was not incumbent upon tbe court to charge tbe law applicable to threats, as there is no .evidence that deceased ever threatened tbe appellant, and tbe introduction of the statement of appellant tbat be was going over to deceased’s bouse to see that be paid Andrada tbe money be owed bim, and, if be did not do so, they would “do one another up,” was admissible as tending to show malice or motive, and did not call for any charge on threats. Tbe court gave a charge on self-defense that was full ■and fair, which in connection with tbe spe■cial charges given at tbe request of appellant presented every theory of tbe case from appellant’s standpoint,, and it was unnecessary to give tbe other charges requested.

We bave carefully reviewed each ground in ‘the motion for new trial, and are of tbe opinion tbe judgment should be affirmed.