
    VARGAS v. STATE.
    (No. 10887.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    Rehearing Denied Oct. 26, 1927.
    1. Criminal law <&wkey;594( I) — Refusing continuance in murder prosecution for absent alibi witness held within trial court’s discretion.
    Overruling motion for continuance, based on the absence of an alibi witness in a murder trial, -held within trial court’s discretion.
    2. Criminal law <&wkey;1134(3) — Where desired witness appeared, and was not used, complaint that trial court earlier refused continu-anoetfor his absence will not be considered on appeal.
    Where trial court overruled motion for continuance, based on absence of one of defendant’s witnesses in murder trial, and the witness later appeared in court during the trial, and was not used, correctness of trial court’s ruling field beyond controversy so far as reviewing court was concerned.
    3. Criminal law <§=l 180 — Ruling on former appeal, not attacked on rehearing and not clearly wrong, becomes law of case.
    Ruling on former appeal from murder conviction that certain evidence was admissible which was not attacked on motion for rehearing, and not clearly wrong, becomes law of ease.
    4. Criminal law <&wkey;>l 120(6) — Bill on appeal from murder conviction, presenting objection that declaration of deceased was erroneously admitted as res gestae, will not be considered, unless showing surrounding circumstances.
    Before bill on appeal from murder conviction, presenting the objection that a declaration of the deceased was erroneously admitted as res gestsa, can demand attention from appellate court, it should show surrounding circumstances from which court could decide that evidence did not come within that rule.
    5. Criminal law <&wkey;366(4) — Declaration of deceased to husband just after regaining consciousness that defendant struck her held properly admitted on murder trial as res ges-tae.
    On murder trial, declaration of deceased to her husband just after she had regained consciousness that the defendant had beaten her lteld properly admitted as part of the res gestae.
    6. Criminal law &wkey;>72l f/2(2) — On murder trial, comment by state’s counsel on fact that defendant had not introduced his wife as witness held permissible.
    On trial for murder, argument of counsel for state, commenting on the fact that appellant had not introduced his wife as witness, field permissible.
    7. Criminal law <©=>72f i/2(l) — Absence of testimony which is under defendant’s control Is proper subject of comment by state.
    Failure of defendant in criminal trial to produce admissible and relevant testimony which is under his controi is proper subject of comment by the state.
    8. Criminal law <&wkey;829(l) — Refusal to give special charge, which was embraced in court’s charge, held no error.
    Where the subject of a special charge refused on murder trial was embracéd in the court’s general charge, there was no error.
    On Motion for Rehearing.
    9. Criminal law <&wkey;4 043(3) — Appellate Court need not consider objections to oourfs charge not made at time of trial (Code Cr. Proc. 1925, art. 666).
    Under Code Or. Proc. 1925, art. 666, Court of Criminal Appeals need not consider objections to .the court’s charge which were not made at the time of the trial.
    10. Homicide &wkey;>253( I) — Evidence held to warrant conviction for murder with death penalty.
    Evidence field to support conviction for murder with death penalty assessed.
    Appeal from District Court, Bexar County ; W. W. McCrory, Judge.
    Anastacio Vargas was convicted of murder, and lie appeals.
    Affirmed.
    M. C. Gonzales and J. Henry Wolf, both of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State. •
   MORROW, P. J.

The offense is murder; punishment fixed at death.

A report of the former appeal will be found in 104 Tex. Cr. R. 283, 284 S. W. 564.

Louisa Garcia was wounded at her home on the night of August 21st, and died from her injuries some ten days later. The weapon used was not shown, but the deceased was struck a number of blows about the face and head with some blunt instrument. Ga-brial Garcia, husband of the deceased, testified that upon the night of August 21st he was called out of his house by persons on the pretense that they were lost, and wanted directions touching the road. Responding to their request, he went out of his house some steps to a gate, where he was struck upon the head with some blunt instrument in the hands, of one of the parties, and rendered unconscious for several hours. The appellant, Vargas, was recognized by Garcia as his assailant. Upon regaining consciousness, Garcia went to his house. His wife was not there, but he found her outside of the house, lying upon the ground in a wounded condition. She told him that she had been assaulted by two men, one of whom was the appellant. Vargas had been an employee of Garcia and his wife for some time previous to the assault. A trunk which contained money and other articles had been removed from the house into the yard, its contents scattered, and $50 in money taken. A physician was called, and described the wounds upon the deceased. At the time he arrived she was in a stupor, and seems not to have regained consciousness. Another witness, Rosalio Valesquez, who lived nearby, gave testimony to the effect that upon the night in question she saw the parties about the premises of the deceased; that they arrived on horseback; that they were Anastacio Vargas and Silverio Gomez. This testimony, though not of a satisfactory nature, was sufficient to corroborate that of Garcia. Officers who visited the premises on the morning after the assault observed the trunk and its contents, also blood in several places, coinciding with the testimony of Garcia touching the locality of the assault upon him and his wife. There was testimony to the effect that the grand jury was unable to ascertain the name of the blunt instrument used in inflicting the blows which killed the deceased.

In overruling the motion for a continuance based upon the absence of Francisco Cruz, the learned trial judge acted within the discretion with which the law vested him. If the witness had not appeared, the efforts to secure his attendance would not have met the legal measure of diligence. It seems that he was not present at the time the motion for a continuance was overruled. However, according to the qualification attached by the trial judge to the bill, it appears that the witness was in court during the trial; that of this fact the appellant’s counsel was notified, and the witness was not used. As stated in the bill, the purpose for which the witness was desired was to prove an alibi. There was introduced on the trial no testimony upon that subject. The complaint is reflected in bills Nos. 1 and 8, both of which are qualified as above stated. Without reference to the other faults in the motion, the fact that the witness appeared and was not used seems to put the correctness of the court’s ruling beyond controversy so far as this reviewing court is concerned. See Hackett v. State, 13 Tex. App. 412; Mitchell v. State, 36 Tes. Cr. R. 307, 33 S. W. 367, 36 S. W. 456; and other cases collated by Mr. Branch in his Ann. Tex. P. C. § 326.

In bill No. 3 complaint is made of the refusal of the court to esclude the testimony of the witness Gabriel Garcia to the effect that the deceased stated to the witness that two persons had beaten her; that one of them was Anastacio Vargas. Against the receipt of this testimony the objection urged is that it was hearsay, and not res gestee. According to Gabriel Garcia, he was enticed from his house by the appellant and his companion, and struck down by a blow which rendered him unconscious. Upon regaining-consciousness he found his wife in a stricken condition, and unconscious. She regained consciousness, however, and made the' remarks mentioned. On the former appeal this testimony was held admissible. That ruling was not attacked upon the motion for rehearing, and, unless clearly wrong, it became the law of the case. Lee v. State, 67 Tex. Cr. R. 137, 148 S. W. 706; Manley v. State, 69 Tex. Cr. R. 502, 154 S. W. 1008; Perrett v. State, 75 Tex. Cr. R. 94, 170 S. W. 316; Betts v. State, 71 Tex. Cr. R. 204, 159 S. W. 1069.

As presented here, the bill fails to show the surrounding facts. In order that the complaint that the 'declaration was not res gestee can demand attention, the bill should reveal facts from which the reviewing court could decide that the evidence did not come within that rule. Cavanar v. State, 99 Tex. Cr. R. 446, 269 S. W. 1053. This the bill under consideration fails to do. If, in view of the extreme penalty, the statement of facts be considered in aid of the bill, we think no error was committed in receiving the testimony in question. The assault on both the deceased and the witness occurred after midnight, at their home, where no other persons were present. The circumstances seem to exclude the idea that between the time of her injury and that of the declaration to her husband the deceased had been in condition for reflection. She was unconscious from the blows she had received when her husband found her a few hours after the injury, and she made the declaration immediately upon regaining consciousness. These facts, we think, bring the transaction within the rule of res gestee as interpreted by the precedents in this state. On the facts, the case of Freeman v. State, 40 Tex. Cr. R. 545, 46 S. W. 641, 51 S. W. 230, is not dissimilar, and the principle there announced and supported by authorities cited uphold the ruling made by the learned trial judge in the prese.nt instance.

Bill No. 5 relates to the examination of the witness Rosalio Valesquez. We are not sure that we comprehend the nature of the complaint or the setting in which the transaction occurred. It seems that state’s counsel asked the witness this question:

“Didn’t you tell Mr. Sam James, Saturday morning when they were down there, that you saw. Anastacio Vargas at your home, and they traced the foot tracks?”

Appellant interposed an objection to the question upon the ground that the- declaration was not made in the presence of the appellant. Arguing the pertinency of this question, it seems that counsel for the state stated that his purpose was to show that on a former occasion the witness had stated to the officers that he saw “Anastacio and this man.” The court permitted the witness to answer the question, and he said “No.” So far as the bill informs us, there the matter stopped.

Bill No. 6 complains of the argument of counsel for the state in commenting upon the fact that the appellant had not introduced his wife as a witness. This remark did not offend against the procedure. The absence of testimony which is under the control of the' accused, and which would he admissible, if relevant, is a proper subject of comment. This rule, applies to the wife of the accused, who is a competent witness in his behalf, but not available to the state, See Mercer v. State, 17 Tex. App. 467, and other cases collated in Branch’s Ann. Tex. P. C. § 372.

There was no error in refusing to instruct the jury to return a verdict of not guilty, nor was the refusal of the special charge to the effect that there should be an acquittal, unless the jury believed beyond a reasonable doubt that the death of the deceased was occasioned by the use of a blunt instrument. This was embraced in the court’s charge.

All bills, as'well as the sufficiency of the evidence, have been given attention.

Failing to find in any of the matters presented error prejudicial to the accused, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

For the first time in his motion for rehearing appellant criticizes certain paragraphs of the court’s charge. By special provision of’ article 666, 1925 O. O. P., this court is not permitted to reverse a judgment, unless the error appearing in the charge was calculated to injure the rights of appellant, or unless it appears from the record that appellant hás not had a fair and impartial trial. Said article further provides that all objections to the charge shall be made at. the time of trial. The last provision of the statute was disregarded in the trial of the present ease, and because thereof we might be precluded from the consideration of an error pointed out at this late date, but on account of the extreme penalty assessed we have examined the paragraphs criticized in the motion, and are of opinion nothing appears therein which was calculated to injure appellant’s rights, or which indicates that he had other than a fair and impartial trial.

In view of appellant’s insistence that the evidence is insufficient- to warrant a conviction with the extreme penalty assessed, we have again given careful attention to the statement of facts on file. Garcia' testified that appellant and another party whom he did not know appeared at' his house ostensibly for the purpose of inquiring the road to Valesquez’s, and that, when he (Garcia) left his house to give them directions, he was assaulted and rendered unconscious; \ that, upon regaining consciousness, he sought his wife, and found that she also had been assaulted, and was then unconscious; that a trunk had been removed from the house, rifled, and some $50 in money taken. Upon regaining consciousness, the" wife said two men had attacked her, one of whom was appellant.. Yalesquez and Garcia lived on the same ranch. Valesquez was related by marriage to Gomez, whom it was claimed was the man with appellant. The testimony given by Yalesquez is unsatisfactory, as was stated in our original opinion. Whether this was because of his relation to Gomez or for some other reason is conjectural. But Val-esquez did testify that on the night of the murder and robbery he saw appellant and Gomez near his house, and that they were riding on horses. The record does not show how far Valesquez lived from Garcia, but it is shown to be on the same ranch. Appellant objects to the language in our original opinion, wherein we stated that Val-esquez testified that he “saw the parties about the premises of the deceased.” It would perhaps have been more accurate.to say that he saw 'them about witness’ premises on the same ranch on which deceased lived. This evidence supported Garcia in so far as it located appellant and Gomez in the neighborhood of the crime. The jury was not without sufficient facts upon which to predicate the verdict, and we would not be justified in setting it aside.

The appellant’s motion for rehearing is overruled. 
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