This is an appeal from a death sentence for murder. The indictment charges appellant with the offense of murder while acting together with Ignacio Gonzalez Chavez and others, whose names were unknown to the grand jury, with the murder with malice of Eugenio Luna by shooting him with a gun. It is alleged that the homicide took place in Webb County on the 26th day of April, 1947.
Appellant had quite a criminal record. He was an escaped convict from a life sentence in the State Penitentiary of Texas. He had been at large for about three years and had spent the time, principally, across the river in Mexico, in the City of Nuevo Laredo which is immediately adjacent to the City of *Page 595 Laredo, Texas. He had come across the border on numerous occasions, in association with other individuals, and engaged in burglaries from which they carried the loot across the line into Mexico. From the arrangements described it is apparent that this was a regular organized gang. On the night alleged he, with three companions, had planned the burglary of a neighborhood grocery store. Two of them actually entered the store while appellant and another companion remained at separate posts on the outside to keep watch. Those in the store were familiar with appellant's signal by whistle, and would know from it that officers were approaching. Some parties in the neighborhood observed lights in the store and, being suspicious that a burglary was taking place, notified the officers, four of whom came and entered the store to surprise the burglars who were engaged in removing goods therefrom.
Several shots were fired as a result of which one officer and two burglars were left dead on the floor. The arrival of the officers was so sudden that appellant did not have a chance to give the alarm. He fled across the line but returned within a few days and was arrested and charged with the burglary. He made a voluntary confession stating his part in the burglary. As a witness in the case he gave the same facts as stated in his written confession, except that he says he could not speak English and did not authorize them to insert the statement that he knew his companion had a gun. The officers who took the confession swore that it was written as he stated it. The issue on that point was properly submitted by the court to the jury who found against him. This precludes further consideration of the question, so far as this Court is concerned. It is noted, however, that he did testify that one of these men was a very dangerous man, that he was afraid of him and had entered this burglary under the command of the other Mexican after he had decided to quit engaging in Texas burglaries. Under all of the facts and circumstances of the case, it is not essential that he should have known his companion had a pistol. It is sufficient that he should be charged with such knowledge. When we consider the nature of the business in which they were engaged, and the character of the man as testified to by appellant, we think that he should have contemplated that the burglar would kill an officer who may apprehend him while engaged in this burglary. It is too often the case that one taken in a burglarious effort will shoot to extricate himself when an officer has him cornered. We, therefore, eliminate what appears to be the main defense in the case.
We acknowledge with much gratification the very valuable *Page 596 assistance given us by the court appointed attorneys. The brief which they have filed in this Court has treated every conceivable issue in the case with force and logic. Consequently we have felt obligated to give like diligence in considering the appeal and all of the issues which it presents.
The record contains twenty-three bills of exception, the majority of which are recognized by appellant as being without merit, as discussed by the brief. Bill of Exception No. 3 complains of the refusal of the trial court to place under the rule one of the witnesses who signed the written confession. Whatever merit might have been in this complaint has lost its effect by reason of the fact that the appellant himself took the witness stand and admitted all material statements in it except the one herein discussed. It is noted further that while appellant was testifying he made contradictory statements as to his knowledge of his companions being armed, but did state that he did not expect them to kill anyone. Under the authority of White v. State, 203 S.W.2d 222, and authorities therein discussed, the appellant is not in position to complain of the admission in evidence of his written statement on the ground that it was not voluntarily made when he has given practically the same evidence from the witness box.
To the writer, the most meritorious question raised is by Bill of Exception No. 7, from which it appears that while the witness was testifying as to the voluntariness of appellant's statement, appellant asked the court to require the regular court interpreter to interpret such testimony into Spanish so that he could understand it. This request was refused, even though the appellant could not understand or speak English. The record is silent as to whether or not his attorney could speak Spanish. This request appeals to the writer as being an important one, and that it would seem but fair that a party on trial should be able, while confronted with his accuser, to hear and understand what he says. However, our law requires that trials shall be held in English and we find no act of the legislature or decisions of this Court which require an interpreter to translate any part of it into another language. We have no authority to write a new law on the subject.
Appellant requested the court to charge the jury that: "If two or more engaged in an unlawful design, and one of them, incited by his own particular malice, or even to further the escape of all, without knowledge or consent of the others, does a felony foreign to the common design, his felonious act is not to be imputed to his confederates." *Page 597
In the first place, there is no evidence in the case that the burglar who shot the policeman was incited by his own particular malice. It may be inferred that he did the killing to effect the escape of himself and all others. That he did so without the consent or knowledge of appellant cannot be sustained, in view of all of the facts and surrounding circumstances of the case as herein above discussed. When the thing done is an independent act of one of the conspirators, though done while he was engaged in the common purpose, the others are not legally responsible therefor, but if the crime is in furtherance of the common purpose, and is such an offense as should have been contemplated would result from the execution of the planned burglary, then all engaged in the lawful purpose are equally guilty. We think, under the facts of the instant case, that appellant should reasonably have contemplated that his companions would do the thing which was done, resulting in the death of the policeman, and that the death would be the logical result of their acts. (Serrato v. State, 171 S.W. 1133.) The requested charge would have been more than appellant was entitled to have. The charge given on the subject, to the effect that where a homicide committed is not in any way connected with or in furtherance of the commission of the burglary, but is the independent act on an independent impulse of the party committing the homicide, and is done without the consent of appellant, then the co-conspirators in the burglary would not be guilty of the homicide, even though they were principals in the burglary. It is our conclusion that this charge fully protected appellant's rights in the matter.
Bills of Exception Nos. 21 and 22 complain of the failure of the court to grant a new trial, based on misconduct of the jury. The question of fact thus raised was passed upon by the trial court when he overruled the motion. Such finding is binding on this Court.
We have carefully examined the bills of exception not discussed herein, together with all of the authorities cited in the brief to sustain the position taken, and have concluded that no reversible error is shown in the record.
The judgment of the trial court is affirmed.
ON APPELLANT'S MOTION FOR REHEARING.