Appellant was convicted of murder in the second degree; fifteen years in the penitentiary being fixed as the punishment.
The theory of the prosecution was, that appellant killed deceased on account of some previous troubles which were brought about on account of appellant's intimate relations with the sister of deceased. This is the motive ascribed. The homicide was clearly proved to have been committed by some one. Appellant was connected with the killing by reason of a confession. Renes testified in regard to the confession: "Yes, I was there at the time the Mexicans had a dance up there. Defendant told me something with reference to the killing of deceased, Antonio. They told me, that they had done the Antonio deed; and after they had the deed they went to the house of his god-parent, or child, and went there with the intention to do likewise to Mercede Montoya, that they had to Antonio Montoya. They just *Page 61 said they killed him, and went up there to Mercede's house." So, the State's case is: the homicide, appellant's connection with it by the confession; the motive — the carnal intercourse by appellant with the sister of deceased. The charge of the court is a full and fair exposition of the law applicable to the facts adduced.
Appellant introduced Eustachio Montoya, who was the sister of deceased and the woman supposed to have had illicit intercourse with appellant, and on her cross-examination, the State's attorney asked her, who was the father of her child, and she answered "Eustachia Ramos." Objection was urged to this, because immaterial, and in no manner tended to connect defendant with the commission of the offense for which he was being tried. We do not agree with this contention. The paternity of the child, under the peculiar circumstances of this case, viewed from the standpoint of the motive, was material testimony. But to the answer here given appellant could raise no objection, because it connected a different man, not defendant, with the paternity of the child; and there was no injury done from that standpoint.
While this same witness was upon cross-examination, the State's attorney asked the following question: "Did you not testify in the grand jury that this defendant was the father of the child you then had in your arms?" She answered, "I did not say that." Objection was urged to this, because of the immateriality of the testimony, and because it tended to show appellant guilty of adultery, he being a married man. Of course, this bill, on the face of it, could not injure appellant, because she had denied the statement.
The following bill, however, was reserved to the admission of the testimony of Clark, who stated that she did answer before the grand jury that appellant was the father of her child. Objection was urged to this, because it in no manner tended to impeach the witness, as the fact whether or not appellant was the father of the child and the paternity of the child, was not an issue in the case; and the evidence could throw no light upon the matter under investigation to wit: the homicide of the deceased; and because it was not permissible to impeach upon an immaterial matter, and it tended to show appellant was guilty of the crime of adultery. We are of opinion that this testimony, under the facts of the case, was admissible. The issue of motive was the fact that appellant had been criminally intimate with the sister of deceased; and deceased seriously objected to his attentions, and there had been some trouble between them on account of this matter. The witness was a witness for defendant, and had laid the paternity of the child upon Ramos. They sought to show her contradictory statements in regard to the paternity of the child, which we think was legitimate as a matter of cross-examination. It has been held that matters of this sort, occurring before the grand jury, when competent for impeachment, or even as original testimony, the proper predicate being laid, is admissible. Wisdom v. State, 42 Tex.Crim. Rep.. *Page 62 As presented by these bills, we believe this testimony was properly admitted.
It is further objected that the testimony of the wife of the deceased, wherein she said: "I am the wife of the deceased, Antonio Montoya, and I saw my husband take Eligio, the defendant by the arm and lead him out of Eustachio's house, and I heard them cursing each other. This was at Mr. Will Blumberg's place last year," — was immaterial and too remote to show motive, and was calculated to prejudice appellant in the minds of the jury. We think this evidence was admissible. The theory of the State was that the killing occurred on account of the intimacy between appellant and the sister of deceased, and this difficulty was predicated upon this very intimacy; it was directly in line with the motive for the killing.
The witness Rios was permitted to testify that he was at Sonka's pavilion, the night the ball was given by the Mexican society, for the benefit of the cemetery, and saw defendant and his brother, Severa, there that night. Various objections were urged to this. It was on this occasion that the witness Renes testified appellant and his brother made the confession. The fact that appellant and his brother were there on that occasion was a legitimate fact to be shown, and it tended to put him in a condition or place where he could make the confession testified by Renes. While it may have been remote, still that would be no objection to its admissibility; it did prove their presence at the place at the time Renes testified they made the confession.
It is contended that the evidence does not support the conviction. We are of a different opinion. That deceased was murdered, weighted with rocks and thrown into the river, was not denied but clearly and strongly proved. The motive for the killing is shown. Appellant's confession, or that of his brother, in his presence, in which the brother said, he and his brother (defendant) did the killing and intended to kill another party the same night, was shown. Wherever the corpus delicti is proved, a confession is of sufficient cogency to connect the party making the confession with the killing; and has been regarded, as far as we are aware, by all the authorities as a sufficient predicate to support the conviction. Some of the authorities, and the later decisions of this court, have gone even farther, and hold that the confession could be used to assist in making out or establishing the corpus delicti. But under all the authorities, so far as we are aware, a homicide being proved, the confession is sufficient to connect the party making that confession with a guilty participancy in the homicide. Attaway v. State,35 Tex. Crim. 403. The judgment is accordingly affirmed.
Affirmed.
Henderson, Judge, absent. *Page 63