Villareal and Villareal v. State

HABPEB, Judge. Both appellants were convicted of murder, and. their punishment assessed at five years confinement in the penitentiary each. The most serious question in the case is the one contending that the( evidence is insufficient to sustain the conviction, and as to- the defendant Práxedis Villareal we think such contention must be sustained. Mere presence at the time and place of the homicide will not in and of itself alone constitute one a principal offender. -Such presence is a circumstance tending to support a finding that one is a principal, but there must be other facts and circumstances in evidence tending to- show that one aided by acts or encouraged by words or gestures the person who actually committed the unlawful act, before a conviction can be sustained. (Art. 75, P. C.; Burrell v. State, 18 Texas, 713; Golden v. State, 18 Texas Crim. App., 637; Noftsinger v. State, 7 Texas Crim. App., 301; Alford v. State, 31 Texas Crim. Rep., 299.) In this case the most the evidence would tend to show is that Práxedis Villareal may have been present when his son, Gorgonio Villareal, fired the fatal shot, if he shot James Bowland, but all the evidence, both for the State and for the defendants, would show the most kindly and friendly relations existing between deceased and defendant Práxedis Villareal, and would exclude the idea that he for any reason would participate in' the murder. All the State can insist that the evidence would suggest is, that perhaps he was present and witnessed the homicide, afterwards concealing the fact that his son, Gorgonio, had shot Bowland. By article 87 it is provided that a father, by concealing the fact that his son has committed a crime, is not guilty as an accessory. To make one a principal offender he must be shown by circumstantial evidence or otherwise to have been guilty of some overt act or conduct prior to or at the time of the homicide. As to Gorgonio Villareal, the record presents a wholly different case. By the witnesses Befugia Bodriguez, Toribia Ortiz and Mariana Guzman it is shown that Gorgonio Villareal not only desired the death of deceased, but besought Befugia Bodriguez and Mariana Guzman to obtain poison for him, offering to pay them $25 to do so, in order that he might have it administered to Bowland. All three of the witnesses testify to a state of facts that would show( that appellant Gorgonio Villareal was intimate with the wife of da-. *372 ceased, and desired to have him killed that he might secure his wife. A sufficient motive is shown by the State’s testimony for him to have committed the crime, and that he had it in contemplation. Appellants5 own witnesses testify that ill-will existed, but they place it on a different ground. They say that Gorgonio formerly was a frequent visitor at the home of James Eowland, but that Eowland had stopped him from coming to his home. They gave as a reason for this that a mule or >a horse had been stolen from Eowland, and he believed that appellant, with another, had stolen the animal, and for this reason had stopped ■appellant from coming to his home. Appellant Gorgonio says he had not been at Eowland’s home for some months. However, a State’s witness, Annie Eowland, testifies to seeing him at her father’s home on two occasions shortly before the homicide, when her father was not at home. Lawrence Morris testifies that he was staying at the home of appellants, and that on Wednesday before the homicide occurred on Sunday, that Gorgonio in a conversation with him said that he wanted to get Jim Eowland out of the way so that he could have Eowland’s wife. Morris was a cousin of Gorgonio by marriage, and detailed the conversation, but the above is the substance of it. He also says that on the day of the homicide Gorgonio told him he was going to Eieardo (the home of Jim Eowland) and get deceased out of the way. That he saw Gorgonio when he left home and that he went in a buggy, and carried with him his Winchester rifle — a .44 caliber rifle. Morris says Jesus Gallardo was horseback and went along with Gorgonio.' On Monday morning he had a conversation with Gorgonio, in the presence of Gallardo, and that Gorgonio told him he had gone to Eieardo and got ■Jim Eowland out of the way. The other testimony shows that Jim Eowland on that Sunday night had been killed, being shot with a rifle ball of .44 caliber. Morris testifies that appellant drove off in a buggy, ■and this buggy was by the sheriff traced into the yard of deceased, and back to appellant’s home. Appellant by his testimony seeks to explain why the buggy was sent to Eowland’s home. He denies driving it, and says that Gallardo ■drove it after his father, Práxedis Villareal, and he is supported in this testimony by his father, mother and other witnesses. He also testifies that State’s witness Morris had borrowed his .44 caliber Winchester rifle, and had it in his, Morris’ possession on the Sunday that Eowland was killed. In this he is supported by the testimony of his mother and other relatives. The jury evidently accepted the testimony •of Morris, and did not believe the alibi testimony of appellant Gorgonio, and the explanation of why the buggy was driven to Eowland’s home, and did not believe that Morris was in possession of the rifle on that Sunday night, and while Lawrence Morris’ reputation for truth and veracity was severely assailed, and he was contradicted by appellants’ witnesses, are we authorized to hold that such evidence is unworthy of belief, when the jury who tried, appellant Gorgonio and the district judge who presided at the trial evidently thought it worthy of credence ? If the testimony of Lawrence Morris is true, with the other facts and *373 circumstances in evidence, tbe testimony authorized the conviction of Gorgonio Villareal, and we will not disturb the verdict as to him. Another, strange circumstance in the ease is that Jesus. Gallardo, who was jointly indicted with appellants, charged with this murder, and who Lawrence Morris says went with appellant Gorgonio when he,. Morris, was told by appellant that he was going to Kieaido and get deceased out of the wa3q and was with appellant when appellant told Morris the next morning that he had gotten deceased out of the way, disappeared on that Monday morning and has not been seen nor heard of since that time. The court permitted a sufficiently broad scope in the cross-examination and impeachment of the witness Befugia Bodriguez, and there was no error committed in sustaining the questions propounded as shown by bills of exception Nos. 1 and 2, and the same may be said as to the-witness Toribia Ortiz in bills Nos. 3, 4 and 5. These bills are very incomplete, some of them showing the questions which were not permitted to be propounded, do not show what the answer would have been, nor, where the questions were permitted to be propounded, what answer the witness really would have made. . As to the questions propounded to the witness Lawrence Morris and questions propounded to Mrs. James Eowland on cross-examination, the answers of the witnesses are not given, nor is it stated what could have been proven by them, nor the substance of what was proven or expected to be proven. As presented in this record, bills Nos. 6, 7, 8 and 9 present no error,, and if they were more full and complete, under the record before us no error would be presented. It was permissible to elicit from appellant Gorgonio Villaieal that he was under indictment-for horse theft as affecting his credit as a witness, he having testified in his own behalf. The only other question presented by the record is an affidavit of one of the jurors, S. L. Cotten, seeking to impeach the verdict. He sa}^ that the jury when theys first retired stood seven for conviction and five for acquittal. That after the case was discussed they all voted for conviction. ■’ That what induced him to ‘ vote for conviction was that he and most of the jurymen believed that Lawrence Morris killed the deceased, and that the, defendants in this'case knew something of .the-crime, and if they were convicted they would tell'‘what they knew, and in such event a pardon could be' secured. He states that he voted guilty by ballot, and also when the jury was polled, but he did not believe the defendants guilty.- A juryman will not be thus permitted to,impeach his verdict after being,^discharged and permitted to mingle',with the outside world. Such has been the unbroken rule of decision-,in this court. Johnson v. State, 27 Texas, 758; Weatherford v. State, 31 Texas Crim. Rep.; 530; Pilot v. State, 38 Texas Crim. Rep., 515; Henry v. State, 43 S. W. Rep., 340; Montgomery v. State, 13 Texas Crim. App., 74, and other cases cited in sec. 1151 of White’s Ann. Proc. *374 The judgment is reversed and remanded as to Práxedis Villareal and affirmed as to Gorgonio Villareal. Reversed and remanded as to one. and affirmed as to the other defendant.