Lara v. State

DAVIDSON, Presiding Judge. This conviction is for murder in the second degree; eight years in the penitentiary fixed as the punishment. Appellant has filed affidavits in this court in regard to the order of the court overruling motion for new trial and matters connected with it. These affidavits cannot be considered. All these matters should have been attended to in the trial court. One of these affidavits *164 is to the effect that the motion for new trial was argued on the 7th of the month; and the court took the matter under advisement and overruled it on the 17th. The record shows the motion for new trial to have been overruled on the 17th. Appended to his motion for new trial are some affidavits rather indefinite in terms, to the effect that the interpreter had incorrectly given the testimony of appellant in the trial court. We are led to believe, though it is not stated, that it referred to an expression used by appellant, in which the statement of facts shows that deceased had stated to a brother of appellant that he had whipped one or more of his brothers and intended to whip appellant and then used a vulgar expression, which appellant contends means that he intended to have carnal intercourse with the remainder of the family, which included his father, mother and sisters. On the 16th, the day before the motion for new trial was overruled, the State filed a controverting affidavit, to the effect that the same word used with reference to appellant’s contention of carnal intercourse, was used with reference to whipping defendant, and in regard to the fact that he had whipped one or two of appellant’s brothers. It is a Mexican word, and spelled in that language, chingue. In the controverting affidavit this is interpreted to mean that he had whipped one or two of the brothers of defendant, intended to whip defendant, and then- whip the Lara family. This affidavit was filed before the overruling of the motion for new trial. Appellant contends that he had no actual notice of the filing of this controverting affidavit. We are of opinion that this would make no difference. It was filed in the case before the motion for new trial was overruled. He is required under the law to take notice of papers filed in a suit pending its disposition. He must be present when the motion for new trial is overruled and sentence is pronounced against him. As there is nothing to indicate the contrary, we suppose he was present, as the law required him to be, when the motion for new trial was overruled. But in any event, affidavits' of this character cannot be filed as original papers in this court. The motion of State’s counsel to strike out these affidavits is sustained. There are -no bills of exception in the record. There is nothing in the contention of appellant in regard to the charge of the court on murder in the second degree to wit: the court charged the jury that if appellant killed deceased in a sudden transport of passion, without adequate cause, etc. The court defined manslaughter and adequate cause. But appellant insists that the charge on manslaughter is not sufficient, because it did not charge the jury that insulting conduct towards the female relatives of appellant would constitute adequate cause. This arises from an expression set out in the statement of facts, detailed by appellant himself in his testimony, as communicated to him by his brother, as follows: Deceased said to the brother, Pedro, “I have whipped you, and have whipped your brother G'erio; and I am going to whip Jesus (moaning defendant) and fuck the whole Lara family.” It is contended that by the use of this vulgar word, appellant used insulting language and conduct *165 towards the female relatives of appellant. We do not so understand this language, or that it was intended to convey the idea that, he was going to have carnal intercourse with the female relatives, or that it intended to reflect upon them in any way. Appellant’s theory seems to be that this intended to convey the idea that the female relatives of his family were prostitutes. This language, in our judgment, was not used for that purpose, and does not convey that idea. It was a term used, if used by him at all, to insult Pedro, to whom it was used, and conveyed the idea of enmity and ill will and the purpose of bringing on a difficulty with him. In the motion for new trial the controverting affidavits make it appear that the vulgar word there used means, to whip, or beat, or chastise, and in the connection used did not mean or convey the idea of carnal intercourse, either willingly or unwillingly with any female relative of appellant. Therefore, we believe the court did not err in submitting this phase of adequate cause and the law of manslaughter from that standpoint. Nor was the charge of the court on self-defense too restrictive or detrimental to appellant’s right, nor did it in any way impair any theory of self-defense. It applied rather pertinently and concisely the law to the facts relied upon by appellant to show self-defense. There were two theories in the case, one that showed murder, a seeking of deceased Try appellant and his friend, Carozalis, that when Carozalis called him at his residence, he immediately armed himself and went with Carozalis to where deceased was. Not a word was said between them from the time he was called until he reached deceased, and he immediately shot and killed him. Appellant’s theory was that he went to where deceased was, and when he met him deceased struck him over the head with a bar of iron and knocked him down, and that he (appellant) shot while lying on the ground at and killed deceased who was standing over him; that deceased also shot at him while lying on the ground. These two theories were submitted to the jury, and they discarded his testimony, and found that for the State to be the truth. Finding no reversible error in the record, the judgment is affirmed. Affirmed. Brooks, Judge, absent.