
    PARISH v. STATE.
    (No. 5154.)
    
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1919.
    On Motion for Rehearing, March 12, 1919.)
    1. Homicide <&wkey;250 — Evidence — Sufficiency.
    In a prosecution for the murder of an 18 year old Mexican boy by a soldier, who was a passenger in his automobile, circumstantial evidence hold sufficient to sustain a verdict of guilty.
    On Motion for Rehearing.
    2. Ckiminal Law <&wkey;552(3) — Conviction — Sufficiency of Circumstantial Evidence.
    In order to convict on circumstantial evidence, it is not essential that the circumstances proved should to a moral certainty exclude every hypothesis that the act may have been committed by another person, known or unknown.
    3. Criminal Law <&wkey;>552(2) — Conviction — Sufficiency of Proof by Circumstantial Evidence.
    When conviction depends upon circumstantial evidence alone, it is essential to prove each necessary fact beyond a reasonable doubt before it can become the basis of any inference adverse to accused, although each fact thus proved need not, standing alone, be of sufficient weight to establish guilt.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ratio P. Parish was convicted of murder, and he appeals.
    Affirmed.
    Abernathy & Smith, of McKinney, for appellant.
    B. B. Hendricks, Asst Atty. Gen., for the State.
   MORROW, J.

The conviction is for murder and punishment fixed at confinement in the penitentiary for 20 years. The evidence is circumstantial.

The deceased, Elíseo Ornelas, appears to have been a Mexican, owner of a Ford automobile which he operated for hire; that during the night of October 9th appellant, in company with one Foreman, both of them being soldiers in the United States army, made a contract with the deceased to take them in his car to a point in the vicinity of ■San Antonio; that the two soldiers entered the car with the driver, one of them sitting on the front and the other on the back seat The cousin of the deceased suggested or wanted to go along, hut the appellant and his companion objected on the ground that they were to bring others back in the car and there would not be room. Deceased appears to have been a boy about IS years of age. He was found the following morning about 7 o’clock by some persons passing along the road. He had wounds upon his head, his skull was crushed, and he was in an unconscious and dying condition. He was in the road, and near his body were automobile tracks corresponding in size and description to those which were on the deceased’s car. There was in the road near these tracks, and not far from the body, some blood in several places and evidence of a fight or struggle having taken place. The deceased had a small amount of money, between $7 and $8 at the time he made the contract, and this had been taken from him and his pockets turned inside out, though his watch and chain had not been removed. Near the body there was found some tobacco and cigarettes, and a button from a soldier’s coat. Tlie car was found on the morning of the 10th of October at a point some distance from the scene of the homicide. It was located near some buildings that were being newly constructed in Camp Travis. There were stains of blood at various places upon the car, engine, footboard, and running board. In the car was found a cap, which was identified as belonging to deceased, and which had a dent in it, indicating that it had been struck by some object. While the persons in charge of the work and the sheriff were examining the car, some one of them handed the sheriff a coat. This was a military coat, and there was evidence introduced identifying the coat as belonging to the appellant. There was evidence, also, that the coat was of a different character from, that used by the other soldiers at Camp Travis, it being similiar to those formerly used by soldiers, and it was claimed by the witnesses that it had been brought from another camp, at which the appellant and his companion were formerly stationed. One of the buttons had been torn from the coat, and the button picked up- near the body of deceased was of the same character as those remaining on the coat, though .there is nothing to show that the buttons on that coat were peculiar or different from those on the clothing worn by the numerous soldiers stationed at Camp Travis. There was a small amount of blood on the coat. The person who handed the coat to the sheriff was not introduced as a witness, and it is only from circumstances that the inference is to be drawn that the coat was picked up by one of the several people who were attracted to the scene of the car after it was found and while it was undergoing examination by the sheriff.

A very short time after the homicide, appellant and Foreman were transferred, with the company to which they belonged, from Camp Travis, at San Antonio, to Camp Bowie, in Ft. Worth, and were there arrested by the sheriff, being identified by the brother of deceased, who was present at the time that the contract between the deceased and the appellant and his companion was entered into.

No questions other than the sufficiency of the evidence are presented. We are unable to reach the conclusion that there was insufficient evidence to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

The only question raised in the motion for rehearing is whether, tested by the rules of circumstantial evidence, the facts support the verdict.

That the deceased came to his death by violence inflicted by some human agency other than his own was established beyond doubt. Tire back of his head bore evidence of blows with some blunt instrument, fracturing the skull in several places, and driving the bone into the brain. The only question that can arise is whether the evidence, under the rules of law, shows that the appellant was the guilty agent. The deceased was found in an unconscious and injured condition on the morning of the 10th of October. The exact locality is not disclosed by the record, further .than it appears that he was in and at one side of a road designated as the Cassin road, which was a dirt road about three-quarters of a mile in length, with cactus and brush growing on each side, with no houses near it, though there was a field in which there was also cactus. He was near the intersection of this road with what is described as the Quintana road, which is from the city of San Antonio to Yon Ormy, and the Quintana road was connected with what is described as the Somerset road by the Cassin road mentioned. As we understand the record, the Somerset road and Quintana road were macadamized, and frequented much more than the Cassin road. From a reading of the statement of facts, we understand that the place where the deceased was found was several miles from the city of San Antonio, though neither the direction nor the distance is proved with any degree of accuracy. In the road near where he was found there were tracks made by an automobile with tires like those used on a Ford car; the front tires being smooth and the back tires nonskid tires. About 30 yards distant from the deceased the tracks indicated that the car had moved a short distance, been turned around, and driven back to the Quintana road. What the witness described as a soldier’s button was about 2 feet from the auto tracks and about 1 foot from the body of deceased. The pockets of the deceased were turned inside out, there was no money found on his person, though his watch with a fob containing the initial “R” was found, also some cigarettes and tobacco in the pocket of his coat or jumper, and one cigarette was on the ground some dozen feet from the body. There were pools of blood in the road, and the appearance of a scuffle, or scraping tlie ground, something like the side of a shoe. One witness described the tracks indicating a scuffle as about 20 feet from the body, and stated there were several puddles of blood, one about 4 feet from the body. Another witness estimated the scuffle as 10 or 12 feet from the body.

It was shown that the Ford automobile was found on the morning of October 10th, at a place, as we understand the record, in Camp Travis where they .were building gun sheds and stables. The car had been driven between two of the stables and stopped. There were bloody stains all over the car, the engine, footboard, and running board. A cap was lying in the car, on the floor, between the -seat and the dashboard. There was blood on the floor, and the cap was stained with blood. It was a stiff cap, and had a dent in the back of it about 2¼ inches in length. This cap was produced on the trial and identified as belonging to the deceased. The automobile thus found was also identified as belonging to him, and the tires showed to be smooth on the front and nonskid on the back ones. After the car was found by workmen, the sheriff and military police were called, reaching the car some time after noon, about 1: SO or 2 o’clock, and while they were examining the car one of the workmen, a carpenter by the name of Smith, who worked in front of where the automobile was found, about 50 yards away, and whose hours of work were from 7 in the morning until 6 in the evening, handed a coat to the sheriff or military police captain. Smith was not used as a witness, nor does the record show where he got the coat. The coat was a part of a United States soldier’s uniform, and was of an old issue worn by the soldiers when they were on the Mexican ■border, and not generally worn by soldiers stationed at the time of the homicide at Camp Travis, though some of the soldiers there who had been stationed on the border possessed coats of the same kind. “Inside of the lining the coat or blouse was smeared with a thin layer of blood over a wide space.” One of the buttons from the coat mentioned was missing and the buttons remaining thereon were like the button which was picked up near the body of the deceased on the road mentioned. The coat was identified as having been purchased by appellant from another soldier a few days before the homicide.

It was shown, by the testimony of a young man who was a relative of the deceased, that on the night of the 9th of October, about 1:30 o’clock in the morning, the appellant and another soldier, both of them wearing uniform, approached the deceased in the city of San Antonio, the deceased being the owner of a Ford automobile which he operated for hire, and made an agreement with him to take them in his car to Kelly Field. Appellant and his companion held a whispered conversation during the negotiations, which was not heard by the witness. The witness asked permission to accompany them, which was denied, upon the ground that they expected to bring three other soldiers back with them. The appellant and his companion then got into the car; the deceased driving, the appellant sitting upon the back seat, and his companion on the front seat with the driver. They left, going in the direction of Camp Kelly. Deceased was a boy about 18 or 19 years of age. Appellant and his companion also wore soldiers’ hats. The deceased had some money, $7.75, the witness declared. The cap worn by deceased and found in the automobile, the coat mentioned belonging to appellant, and a hat which this witness described as one of the hats worn by the men, were introduced in evidence.

The verdict implies that the jury believed beyond a reasonable doubt that the circumstances disclosed by the evidence, whether controverted or uncontroverted, existed. That the deceased was killed by violence, not self-inflicted, and that he was rob'bed, is the only inference reasonably deducible from the circumstances surrounding the homicide. We assume that the jury found that he was robbed; that he was wounded while in his car; that a button from a military coat was found near his body; that appellant was a soldier domiciled at Camp Travis; that the deceased’s automobile was found at Camp Travis; that its tires were smooth in front and nonskid in rear; that the appellant’s coat was found in the same vicinity in which the automobile was found; that there was a button missing from the coat and blood smeared upon the inside of it; that the button found near the body of deceased was like the button that came oif of appellant’s coat; that about 1:30 at night, before the body of deceased was found, the appellant and a companion, both soldiers wearing uniform, contracted with the deceased to take them in his automobile to Camp Kelly; that they got into the car with deceased and started in that direction; that pending negotiations over the contract they held a whispered conversation; that they objected to the relative of the deceased accompanying them, stating that they expected to bring other soldiers back with them; that the deceased was not seen again until he was found in a dying condition near the road.

Appellant insists that these established circumstances were fatally faulty in connecting him with the homicide, suggesting that the absence of proof that the body was found in the direction of Camp Kelly or Camp Travis, and its direction from San Antonio was undisclosed, aifords a hypothesis favorable to the appellant. He would he entitled to the benefit of any favorable inference reasonably to be drawn from these omissions in the proof; but there are none pointed out, and we discern none.

Doubtless, the case having been tried in Bexar county, the counsel assumed the familiarity of the jury with well-known localities, and it appears, moreover, that a plat or diagram was before the jury, which is not brought up by the record. The circumstances were such as would have justified the inference by the jury that the deceased received a mortal wound while driving his car, and in the absence of some suggestion from the evidence that at the time he received it he was in company with others than the appellant and his companion,.with whom the evidence placed him, the location of the car at the time he received the wound would not, so far as we are able to understand, be á matter of consequence, whether it was on the road to Camp Kelly, in which direction, according to the evidence, they started, or whether it occurred at the point near which the body was found. ,

The omission to show how, or at what point, the carpenter, who handed the coat to the sheriff, received it, is made the basis of attack upon the sufficiency of the evidence. If it be presumed that the coat was found on the wayside and was not hidden, it would not destroy the circumstances established by the evidence that it was appellant’s coat, that it had blood on it, and that a button was missing from it, unless we go farther, and presume that the carpenter’s testimony, if presented, would have explained these circumstances in a manner consistent with the innocence, or inconsistent with the guilt, of appellant. The evidence discloses that the carpenter ¡worked near where the car was found; that he began work about 7 o’clock in the morning; that he handed the coat to the sheriff while he and others were examining the bloody car, some time after noon on the day it was found; and there is no circumstance or fact in evidence which would justify the presumption that the carpenter’s knowledge of the coat would extend further than his having found it in the vicinity of the car in the condition in which he delivered it to the sheriff. The location of the blood was not a controlling fact. It may have gotten on the coat by its falling on the car, or from ¡contact with the car or the deceased while on appellant.

The failure to introduce testimony going to show that appellant was not at his place with the company on the morning when the body was found could do no more in appellant’s favor than to compel the presumption that he was with his company at the time mentioned. This presumption would not have' been inconsistent with his guilt, for the reason that' he was shown, by the undisputed evidence to have been absenijfrom Camp Travis at the time that he undertook the journey with the deceased at 1:30 on the; night of the 9th of October. The deceased’s car, bearing evidence of the tragedy, had been driven to Oamp Travis and deposited between two; of the stables at a place where, during the daytime, it would have been seen by numbers of people who were working upon the buildings, and it is quite consistent with the state’s theory that the appellant returned to his barracks before the dawn of the day upon which the body of the deceased was found. There was no direct evidence that the appellant and his companion were acquainted with the operation of a Ford automobile. There w'as evidence, however, going to show that the appellant and his companion conspired against the deceased, and that their conspiracy contemplated that, to make their escape, the use of his automobile would be necessary, from which the inference would be a natural one that they were prepared to operate it.

In their able and ingenious argument, counsel, who presented the case on motion for rehearing, advance the theory that a hypothesis favorable to appellant arises from the fact he or his companion stated, in answer to the request of the relative of the deceased that he might accompany them to Kelly Field in the ear, that he could not be permitted to do so, for the reason, that they expected, on returning from Kelly Field, to bring three soldiers with them. In order to convict oni circumstantial evidence, it is not essential that the circumstances proved should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, known or unknown; but- the hypothesis intended is a reasonable one, consistent with the circumstances and facts proved, and the supposition4 that the act may have been committed by another person must be in harmony with the evidence. Shultz v. State, 13 Tex. 401; Hamlin v. State, 39 Tex. Cr. R. 606, 47 S. W. 656; Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Taylor v. State, 195, S. W. 1150; Wallace v. State, 46| Tex. Cr. R. 349, 81 S. W. 966; Michie’s Crim. Digest, vol. 2, p. 721.

In Pogue’s Case, 12 Tex. App. 295, to which we are referred, there were weaknesses disclosed by the record not apparent in this one. There there was a hypothesis of suicide, of self-defense — an absence of evidence that the appellant ¡was present, save that he had been seen with the deceased some hours before the dead body was 'found. There was no motive disclosed, no blood stains found. When cases depend upon circumstantial evidence alone it is essential to prove each- necessary fact beyond a reasonable doubt before it can become the basis of any inference adverse to the accused. It is not, however, required that each fact thus proved he, standing alone, of such weight as to establish guilt. Marshall v. State, 5 Tex. App. 273; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Vernon’s Crim. Stats, vol. 2, p. 595. That a button from a soldier’s coat was found near the body of the deceased, while it tends to show that a soldier was present at the homicide, it, standing alone, is by no means conclusive. Tq strengthen it there was available to the jury the fact that there were automobile tracks made by the car with tires similar to that of the deceased’s; that there were footprints on the ground showing the presence of others; that the spot was an unfrequented one, rendering the presence of others, who would have accounted for the presence of the button, improbable; the fact that appellant, when he entered the car with the deceased was • wearing a military uniform, and that his coat, after the body was found, was minus a button, and those remaining were like that found near the body; the fact that the coat had blood upon it; the fact that the car turned around and was driven from the scene of the tragedy on the Quin-tana road towards San Antonio, at or near which was located Camp Travis, the domicile of appellant and his companion, at which place the car was found, abandoned, containing the battered and bloody cap of the deceased, the car itself smeared with blood; the fact that after midnight, a few hours before the deceased was found in an injured and unconscious condition, the appellant and his companion, on their own seeking, had taken passage with deceased in his car, taking care that they should be alone with him by objecting, after a whispered conversation, to the cousin of the deceased accompanying them.

While probably no one of these facts would support the verdict, they being consistent with each other, with the main fact in issue, with the guilt of the accused, and inconsistent with his innocence, the verdict is upheld by their cumulative and combined strength, each forming a thread in the cord of circumstances which drew and bound the minds of the jury to the conclusion which produced a reasonable and moral certainty that the appellant took part in the homicide. Hocker v. State, 34 Tex. Cr. R. 359, 30 S. W. 783, 53 Am. St. Rep. 716; Wells on Circumstantial Ev. p. 279. This conclusion having received' the sanction of the trial judge, we are convinced that, in view of the evidence, it is neither our right nor our duty to overthrow it.

The motion for rehearing is overruled. 
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