Appellant was indicted for the murder of Juan Rodreguez, by shooting him with a pistol. He was convicted of murder in the second degree, and his punishment assessed at twenty-five years confinement in the penitentiary.
Felix Trevino, a brother of the defendant, was also indicted for this murder. Deceased and Soledad Trevino, sister of these parties, were engaged to be married. Her brothers objected to the marriage. Soledad, with her brothers, was staying on the premises of one Johnson. Cruz Rodreguez, a friend, but not related, to the deceased, on the night of the homicide, went to Johnson's after the girl, she and the deceased having made arrangements to elope, and go to Cuero on that night, for the purpose of securing a marriage license, and to be married. Cruz Rodreguez went to Johnson's after Soledad, in accordance with this agreement; and upon this trial Soledad was a witness for the State, and testified that while she and Cruz were at the creek that night, waiting for the deceased, she heard three shots; that Cruz was with her at the time the shots were fired. All of the testimony is to the effect that three shots were fired. No person witnessed the homicide. A few days after appellant was convicted, his brother Felix was placed upon trial for this murder, and Soledad was a witness in his behalf. Upon this trial she testified: That on the night of the homicide, before she and Cruz went to the creek, they stopped at the gate, and Cruz left her, stating he would go and find the deceased. That then he had no pistol or knife that she saw, and no bloodstains on his clothing; that he remained away from her two or three hours. While he was gone, she heard three pistol shots. That, in about a half hour thereafter, he returned. He had blood on his sleeve, from his elbow to his wristband, and blood on his right breeches' leg, and had a large pistol and knife. On his return, Cruz said to her that "the deceased was not coming, that he would keep her in his [deceased's] place." She refused to accept this proposition, and he told her, if she ever mentioned what he had said, or that he was absent from her during the night, he would kill her. That they then went to Mr. Johnson's and tried to stay all night. That she did not testify to this before, because she was afraid Cruz would kill her. That she never mentioned this but twice before, and that was to the interpreter Moro, and to the county attorney, and in both instances was subsequent to the first trial, and just prior to this trial. In motion for a new trial, appellant brings all of this matter forward as newly-discovered evidence, insisting that upon another trial this testimony would probably change the verdict of the jury.
If what Soledad swore on the second trial — that is, on the trial of Felix Trevino — be true, it was very important testimony, calculated to produce a different result. The question before us, however, is as to the probable truth of her last statement. Her brother Felix had the benefit of this testimony, and he was convicted. But, be this as it may, the question as before stated, is the probable truth of the statement. When we look to all the facts and circumstances in evidence, we are of opinion that her *Page 68 last story is not the truth. Cruz Rodreguez borrowed a pistol from Johnson. It was a 45-caliber. Deceased was shot with a 38-caliber. This is demonstrated by the weight of the ball. The proof shows that appellant had a 38-caliber pistol; that it had three loads in it; and, on the day after the shooting, it was examined, and found to have been recently discharged. All the witnesses who swear to this point say that they heard three reports. Cruz returned the pistol to Johnson the next day. When he received it, it had five loads in it. When it was returned, they were still in it, and the pistol gave no evidence of having been recently discharged. The specks of blood upon his clothing were shown to have been a few little specks, accounted for by Cruz by the fact that, while he was waiting, mosquitoes bit him, and he mashed them. Other witnesses testified to the fact that they were specks, and not smears. There is no suggestion that he had changed his clothing. There was no blood upon his pants at all. He was a warm friend of the deceased. There was no evidence that he had ever visited Soledad as a suitor, and there was no such relation existing between Soledad and Cruz that indicated that he had any intention or desire to make her his wife, and had never made any such advancements towards her. We are of the opinion that the court did not err in refusing to grant a new trial upon this ground.
Several objections are made to the charge of the court. We have carefully read the charge, and, when viewed in the light of the evidence in the case, it is correct. Complaint is made of the charge on circumstantial evidence. We hold the charge to be sufficient. It is not obnoxious to the objection made in the cases of Jones v. State, 34 Tex.Crim. Rep., and Smith v. State, 35 Tex.Crim. Rep.. By comparing the charge in those cases and this case, it will be seen at once that there is a radical difference. It would not have been proper in this case for the court to have stated to the jury "that the testimony, when taken as a whole, must establish that the accused is the principal, and no other person committed the offense as charged." The theory of the State, very cogently supported by the testimony, was that the defendant and his brother killed the deceased, and that they were both principals. Counsel objects to this charge because a charge on the weight of the evidence, it assuming that there are circumstances in the case against the defendant. The court assumes nothing in the charge. It is not a charge upon the weight of the testimony; it is not a charge unsupported by the testimony; but a charge directly applicable to the case.
There is no bill of exceptions reserved to the action of the court in overruling the motion for a continuance. We find no error in this judgment, and it must therefore be affirmed.
Affirmed. *Page 69