Ortiz v. State (60 S.W.2d 441, 1933)

CHRISTIAN,: Judge.

The offense ' is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Clara Deases by shooting her with a pistol.

Deceased had been appellant’s, sweetheart. According to appellant’s version, he had had intimate relations w.ith deceased, resulting in her pregnancy, and. the performance of an operation bringing ¿bout ah abortion. Appellant testified that he had asked deceased to marry him, but that- her mother had objected. The testimony'Of deceased’s mother constituted a denial of the- intimate relationship existing between appellant and deceased, and a denial that the operation testified to by appellant had been performed.

It appears that appellant lived in the home of deceased’s mother. On the occasion of the homicide t-wo young men were visiting deceased and her friend, Mateana Lee. These young men were sitting-with the girls on a sofa. Appellant was just outside of the room on a porch. Deceased got up and raised a curtain, and, as she started to take her place on the sofa again, appellant fired several shots through the window. One of the young men in the room was instantly killed. Deceased was mortally' wounded. Deceased’s mother and sister went to the door, the mother saying-to appellant:' “Leon, what are you shooting in this room for, in this house?” Appellant made no reply, but fired a shot in the direction of the mother and sister.

Appellant, declared that he. saw one of the young men kiss deceased and saw deceased hugging this young man. He sáid this conduct angered him, and, drawing his pistol, he fired three shots into the room. Further, appellant testified that shortly, before he killed deceased she had told him that the young man visitor was her lover.

The court submitted murder with malice, as well as murder without malice. In each instance the law was properly applied to the facts. The charge adequately presented every issue raised by the testimony.

Bill of exception Nó. 1 is concerned with the action of the court in permitting the state to prove that at the same time appellant shot deceased he killed Pablo Lopez, who was calling on deceased. This.testimony was properly received. Proof of the killing of Lopez was a part of the res gestae of the killing of deceased. Claxton v. State, 109 Tex. Cr. R. 345, 4 S.W.(2d) 542; Arcos v. State, 120 Tex. Cr. R. 315, 29 S.W.(2d) 395.

Bill of exception No. 2 sets out the following question propounded to Doctor Zar-sky: “State whether or not while in the house you saw anyone else who had been wounded, and if so, describe the wounds?” It is recited that appellant objected to the question on the ground that.it was no part of the res gestae, and could serve .-no purpose other than to inflame the minds, of the jury. In answer to the question the doctor testified that he found that Pablo Lopez had a wound in his head and another through, his hand, and that death resulted from the. wound in his head. This examination was , shown to have been made shortly after the homicide. As indicated in our discussion of bill of exception No. 1, there was no error in showing that appellant killed Lopez. We think it follows that it was proper for the physician to describe the wounds and state to the jury that one of such wounds caused the death of Lopez.

Bills of exception 3 and 4 relate to appellant’s objection to testimony of the doctor to the effect that, upon being called to the home of deceased, he found that Lopez was dead and that deceased was mortally wounded. Our discussion of bills 1 and 2 is applicable to the questions presented by bills 3 and 4.

A careful examination of all of appellant’s contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals - and approved by the court.