Garcia v. State (70 Tex. Crim. 485, 1913)

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the second degree, his punishment being assessed at eight years confinement in the penitentiary.

The evidence briefly stated is that all the parties to the transaction were Mexicans. The killing occurred at night. Appellant had been sent by his father with a sausage mill and Winchester rifle to a friend of his father. This friend wanted a sausage mill to use in making sausage as he purposed killing hogs. The gun was sent without request, and was accounted for in this way: On the previous year this friend of appellant’s father had considerable trouble in killing a hog which was wild and this for want of a gun. This matter had been mentioned by the friend to appellant’s father, and thinking this friend might need the gun he had instructed his son, appellant, to carry the gun with him on this occasion. En route from his father’s home to his father’s friend he met deceased and another Mexican named Feroba. The State’s view of the case is that upon the meeting appellant said to the deceased, Cabasos, “I have got you where I want you,’’ or a similar expression. That as Cabasos was alighting from his horse appellant shot him in the shoulder a little in the rear of his side. There had been trouble between the parties previously. The deceased had used very insulting language, calling appellant and his brother “cabarons,” which the witnesses say is the most insulting language known to the Mexican tongue. There is also testimony to the effect that deceased had said that there would be trouble whenever he and appellant met. There was some testimony of a similar nature which it is deemed unnecessary to recapitulate. •Appellant’s version of the homicide was substantially as follows: That in obedience to the instructions of his father he was carrying the sausage mill and gun to Crecencio Benito, the friend of his father to which allusion is above made. En route he met Feroba and deceased on the road. Feroba spoke and said good evening. Appellant answered him and said good evening. Feroba then asked,