Appellant was convicted in the Thirty-fourth District Court of El Paso County, of being an accomplice to the crime of murder, and his punishment assessed at fifteen years in the penitentiary.
Appellant owned land in the Rio Grande valley below the city of El Paso. On said land he had patches of watermelons enclosed by wire *Page 628 fences. Prior to the date of this homicide he had employed various parties, among them one Luis Garcia, to guard said melon patches against depredations. On the night of the homicide four young men came from El Paso down a road adjacent to the melon patch guarded by Garcia. Two of said parties, deceased Grady Weeks and one Caples, alighted from the automobile in which the four were riding, got over a fence and into a melon patch of appellant. Garcia, from a position across the road and in another enclosure, fired a rifle, shooting Grady Weeks in the head and killing him. Garcia was indicted and convicted as a principal and appellant was convicted as an accomplice to the murder of Young Weeks. Other facts necessary to elucidate our opinion will be stated in discussing the various questions raised.
Appellant claimed that deceased and Caples, his companion, had gone into the melon patch in question in the night-time for the purpose of committing theft, and that this being true, the act of Garcia in killing Weeks was justifiable homicide under the provisions of Article 1105, Vernon's P.C., which makes justifiable a homicide inflicted for the purpose of preventing theft at night. The State contends that taking melons from the patch is not theft under our statute. In the early Penal Code of Texas it was made theft for one to steal or feloniously take any growing, standing or ungathered corn . . . or other agricultural product. Our Legislature enacted Article 1105, supra, in 1871. Three years later, what is now Article 1234, Vernon's P.C., was enacted specifically declaring that if any person shall take or carry away from the farm, orchard, garden or vineyard of another, without his consent, any fruit, melons or garden vegetables, he shall be fined in any sum not exceeding one hundred dollars. By the Revised Statutes of 1879 this Act was classified as malicious mischief, and has been so classified in succeeding revisions or codifications of our statutes since. When the Legislature selects certain acts, though theretofore or otherwise made penal under an existing statute, and by specific designation makes such acts punishable by a different penalty from that theretofore applicable and essentially changes the ingredients of the new offense, such specified acts are removed from the list or classification of crimes to which they formerly belonged and must thereafter be in that class in which they are placed by such new Act. This is illustrated by the well known rule applicable to laws making theft of certain designated property punishable by different penalties from that applicable to theft in general, such as theft of hogs, cattle, horses, etc. It would clearly no longer be proper to prosecute or to punish one charged with violating such law, under the general theft statute.
While the question here presented was not raised by the accused on appeal in Busey v. State, 87 Tex.Crim. Rep., still it appeared to us so clear that one charged with taking ten bushels of pears from an orchard could not be prosecuted under an ordinary indictment for *Page 629 theft, but must be prosecuted under the provisions of Article 1234 for malicious mischief, that in reversing said case upon another error, we felt it our duty to call attention of the trial court to the provisions of said last named article, and to the fact that the prosecution should be brought thereunder.
With the legislative purpose in the enactment of a given law, we are not concerned save we be called upon to construe some part or the whole of such law by reason of some ambiguity therein or lack of clarity of expression. The language of Article 1234,supra, omits the well recognized elements of theft, and would seem to plainly indicate that the Legislature intended to remove the acts therein named from the domain or classification of theft. While this appears to be the plain indication, it may not be amiss, in view of the language of Mr. Black in his work on Interpretation of Laws, p. 107, where the learned author says: "It must always be supposed that the legislative body designs to favor and foster rather than to contravene, that public policy which is based upon the principles of natural justice, good morals and the settled wisdom of the law as applied in the ordinary affairs of life," and in view of the sequence in point of time in the enactments, to conclude that our lawmakers did not intend that that class of offenders most frequently composed of ignorant, youthful and thoughtless persons, who ordinarily take fruit, melons and vegetables from our orchards, farms and gardens, could be ruthlessly shot down when so engaged and those who killed them claim themselves justifiable as persons who had taken human life in preventing theft at night. We think it correct to further state that as far as our information goes, no other State save Texas justifies homicide when committed to prevent theft at night, except such theft be a felony.
Our conclusion is that one who kills another while the latter is engaged in an act comprehended by the terms of Article 1234,supra, could not as a matter of law claim such act to be justifiable homicide, but this in nowise affects one's right to act in defense of property as given under Article 1107, Vernon's P.C. This disposes of many of appellant's contentions as set out in his various assignments of error in his brief and contained in several bills of exceptions.
The cases of Grant v. Haas, 75 S.W. Rep., 345; Slack v. State, 67 Tex.Crim. Rep., and Davis v. State, 81 Tex. Crim. 450, 196 S.W. Rep., 521, are cited by appellant in support of these assignments of error, and this contention made by him that Garcia was justifiable in taking the life of young Weeks.
The expressions of the courts in their opinions must be read in the light of the issues and facts in the case under discussion in such opinion. Whether the taking of melons was malicious mischief or theft, was in no way an issue discussed in Grant v. Haas,supra. The case was one of damages sought by a party injured by a spring gun set in the melon patch by its owner. In Slack v. State, supra, the defense relied for justification of a homicide, on the fact that deceased *Page 630 was in the act of stealing corn from a field of the accused. The State witnesses swore that deceased left the wagon in which they were and entered the field to look for a watermelon. While there is no discussion of the question involved in the instant case, as to whether taking melons from a field is theft or malicious mischief, we do find this expression in the opinion in the Slack case:
"If deceased was merely trespassing on the premises of appellant, and at the time he was shot he was not engaged in committing a theft, and his acts and conduct were not such at the time as to make it reasonably appear to appellant that he was there for the purpose of committing a theft, the killing would be unjustifiable. But, if, in fact, deceased was stealing corn in the night-time, and was leaving the premises with the corn in his possession, appellant was justifiable in shooting him."
We take this to be in accord with our views here expressed. In Davis v. State, supra, a wagon load of melons had been taken and secreted apparently at some distance from the patch where they grew. The owner found them and went with others on the night following, to apprehend the takers when they should return for the melons. When they did come a difficulty ensued and the owner of the melons was killed. It would appear so plain that the rights of the parties arising from and dependent on their attitude toward a load of melons moved from the patch before the contest arose, could shed no light upon the question under discussion, that we forego any further discussion of said authority.
A special charge was requested by appellant to the effect that if deceased entered the premises in question on the night of the homicide to steal melons already severed from the vines, piled up and ready for market, or if his acts and conduct in the premises were such as to make it reasonably appear to Luis Garcia that such was his purpose, and that Garcia shot to prevent the theft of such melons, the appellant should be acquitted. Measuring the applicability of this charge by the facts, it does not appear that deceased or Caples, or any of their party knew there were any melons pulled or piled up in the field. Garcia did not claim on the witness stand or at any time that deceased or Caples were approaching or near any melons severed from the vines, nor did he claim that he shot to prevent the taking of such melons. Appellant testified that there was a pile of melons already severed from the vines located about fifty feet from the spot where Weeks was at the time he was killed. We think such special charge not called for by the facts.
There was no testimony tending to raise the issue that Garcia shot at Caples, the companion of deceased, and that such shot accidentally killed young Weeks. There was hence no need for the submission of this issue as presented in Special Charge No. 12.
The indictment contained two counts, one charging appellant as a principal in the murder, and the other as an accomplice. Both counts *Page 631 were submitted in the court's charge. When the case was closed on the evidence, appellant presented a motion for an instructed verdict as to the first count, which was refused. We see no injury to appellant possible from the court's refusal of such motion. The authorities cited appear to be those in which by some appropriate effort an election was sought before the accused was called upon to introduce his evidence. The verdict of the jury found appellant not guilty under the first count, and guilty under the second count.
There was no error in refusing appellant's motion for an instructed verdict of acquittal. The killing was with a rifle furnished Garcia by appellant, and if it appeared from the evidence that appellant directed Garcia to kill any man who crossed his fence, this would present a jury question as to appellant being an accomplice in such killing.
The confession of Garcia was admitted in evidence over the objection of appellant. The weight of authority seems in favor of admitting the confession of the principal, where an accomplice is on trial, it being necessary to show the guilt of the principal, and all evidence being admissible whose legitimate tendency is to show such guilt. 16 Corpus Juris, p. 146; Simons v. State, 10 Texas Crim. App., 131; Crook v. State, 27 Texas Crim. App., 239; Hamlin v. State, 39 Tex.Crim. Rep.; Thomas v. State,43 Tex. Crim. 23; Gibson v. State, 53 Tex.Crim. Rep., 110 S.W. Rep., 41; Sapp v. State, 87 Tex.Crim. Rep.. Such confessions are not limited to a narration of the bare facts showing the physical act of the infliction of death by the principal, but legitimately include such statements as show the malice, deliberation, preconcert, etc., which fix the character of the offense and affect its punishment. On the trial of the accomplice a confession of the principal can be used for no other purpose than to show and establish the guilt of the principal, and the purpose and effect of such evidence must be carefully guarded in the court's charge. An inspection of the charge in the instant case shows that this was done. From another standpoint the bill of exceptions does not point out any part of the confession and make specific objections thereto, the written statement being objected to as a whole for the reasons stated. We do not think it the duty of the court to sustain a general objection to a document or statement, some part of which is pertinent and admissible. One desiring to avail himself of such objection, must point out that part of a document or instrument which is objectionable and not include the whole.
A statement made by the wife of Garcia not in response to any question, was set out as objectionable in appellant's bill of exceptions No. 10. Said volunteered statement was as follows: "Since my husband was arrested Mr. Espalin went over to see the watchmen down there and told them that if the sheriffs would come over there and ask them about the orders he had given to say that he had given such orders as those Mr. Jose Mosqueda said instead of going and saying what was not the truth we would do — and he went." We have *Page 632 examined this carefully and conclude that the matter is of no injury. It does not appear what orders of appellant are meant by the language used, and same is susceptible of the construction that he gave to the other watchmen orders similar to those given to Garcia.
One who desires to object to the argument of his opponent's counsel, to the jury, should not do so by selecting a number of separate disconnected paragraphs of such address to the jury and direct a general objection thereat. In appellant's bill of exceptions No. 9 there appears nine quotations from the district attorney's speech to the jury. Many of them are clearly permissible. No setting or connection is given in said bill of exceptions as to any of said quotations, and none of them appear sufficiently objectionable to make them reversible error per se.
The testimony of Garcia was given in behalf of the State, and, if true, it amply made out a case against appellant. He swore that in company with several companions he was brought across the Rio Grande river from Old Mexico some time prior to this homicide, and that he was at once employed by appellant, who later placed him at guarding melon patches. That when put to such work appellant raised his wages, gave him a rifle and ammunition and told him to kill any person entering said melon patches; that it made no difference who it was, that if appellant's mother so entered, to shoot her; that witness should keep his gun concealed and walk around the patches, and that if he saw anyone enter, to kill such person. Garcia said that shortly before this killing some soldiers came down and got some melons in the field witness was guarding, and that appellant became very angry with witness and chided him for not killing some of them, and told him that he was a coward, and that if he had killed some of them it would have had a good effect, and that he must kill any person entering said patch; that he would give him additional money for each of such persons that he would kill. Garcia said that appellant promised to protect him from any evil consequences resulting from such killing. In these matters Garcia was substantially corroborated by his wife who claimed to be present and to hear appellant give such instructions. Garcia testified that when young Weeks and Caples climbed over the fence that he shot because he was told so to do by appellant. No word was spoken to either of the young men, and no effort was made to prevent any removal or threatened removal of, or attack by either of them on property in the melon patch. Garcia has been adjudged guilty of murder and his case affirmed by this court, and the evidence appearing amply sufficient to corroborate his implication of appellant in the crime, and no reversible error appearing in the trial of the case, the judgment of the lower court will be affirmed.
Affirmed. *Page 633
ON REHEARING. January 25, 1922.