
    CASTORENO v. STATE.
    (No. 4831.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <&wkey;784(l) — Instruction — Charge on Circumstantial Evidence.
    In a prosecution for homicide resulting in conviction of murder, held, the court was justified in not charging the law of circumstantial evidence.
    2. Homicide &wkey;>253(3) — Murder — Malice and Deliberation — Sufficiency of Evidence.
    Evidence as to malice and deliberation held to justify conviction of murder.
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Ysabel Castoreño was convicted of murder, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at 15 years’ confinement in the penitentiary.

No bill of exceptions was reserved to the introduction of testimony. There is an exception to the failure-of the court to charge the law of circumstantial evidence. There are some other exceptions the force of which seem to be that there was no malice shown on the part of the defendant towards the deceased. These are rather general and based upon the fact that the testimony did not show there was any malice. We are of opinion that the court was justified in charging the jury as it did, and the facts were in such “juxtaposition” with the main fact that it was not necessary to charge upon the theory of circumstantial evidence. The state’s evidence, in this connection, would show that on the 23d of December, 1916, in a saloon owned by Slocum, were several men, among them the defendant. The witness Koch sat on a barrel in the saloon. There came a discussion between Slocum and a Mexican as to who should pay for beer. Three of the Mexicans went out of the saloon, and one of these who went out was defendant. Two others were Caterino Castoreño, appellant’s brother, and Dionicio Soto. There remained in the saloon two Mexicans, Refugio Gonzales and a Mexican by the name of Magarito Luna. The state’s witness Hardin was about to leave the saloon when he turned and saw Slocum, the deceased, standing behind the bar and Luna in front of it. Luna was pulling at Slocum’s sore hand, and Slocum slapped him in the face, and in doing SO' knocked off his hat. Slocum picked up Luna’s hat, and put it on Luna’s head, and went behind the counter. Luna reached over the counter and grabbed Slocum’s hand, and Slocum told him not to do so; that it was quite sore from a cut or dog bite. Something more was said between the parties, and Slocum said to Luna:

“ ‘Yon are one of these malo hombres’ (bad men). ‘Yes, I am,’ replied Luna; and then I heard Mr. Slocum tell this Magarito Luna to get out of the saloon; that he did not want 1ns trade, and did not want him in there. Mr. Slocum then came from back of the counter, and this man Magarito Luna stood near the saloon door and cursed Mr. Slocum. Mr. Slocum raised his arm to strike Magarito Luna; at this time Refugio Gonzales came up to Mr. Slocum as Mr. Slocum struck at Magarito Luna, and as he did so Refugio Gonzales struck Mr. Slocum with his fist somewhere back of the head. Magarito Luna and Mr. Slocum stumbled out of the saloon door, and Refugio Gonzales followed Mr. Slocum.”

Witness ran out of the saloon and followed Mr. Slocum about 30 or 40 feet away from the saloon. Witness saw Luna, on top of Slocum’s back, with his arm underneath Slo•cum’s chin. The defendant and his brother were holding Slocum’s right arm, and Soto was holding his left arm. Witness pulled the Mexicans off, and then Slocum started to his grocery store, where his wife was. Slocum entered the store and said to his wife: “Mama, I am cut, and cut bad;” then sank to the floor, and in three minutes was dead. On cross-examination he says he saw this hunch of Mexicans around Slocum. The defendant was holding Slocum’s right arm and his brother Caterino also, and Dinicio Soto had hold of Slocum’s left arm. Witness pulled the Mexicans away, defendant being one of them, and the little Mexican Tuna was on Slocum’s back, with his arm under Slocum’s chin. It was also stated in this connection that immediately upon the separation of the parties, as above indicated, when Slocum started in tb'e saloon one Mexican said, “Vámonos pronto,” which translated means “Let’s go quick,” and also said, “Subite al vagón,” that is, “Get in the wagon,” in which these Mexicans drove off. They went away at a rapid rate.

The witness Koch testified practically as (lid the other witness, and that when they went out of the saloon Slocum stumbled and Refugio Gonzales hit him. The other Mexicans went out of the saloon at the same time. Slocum and Luna were outside. Witness ran out of the saloon some 30 or 40 feet, and saw a bunch of Mexicans hitting Slocum, and defendant was among them, and heard Slocum say, ‘Take that knife out of my back.” The little Mexican Luna was on Slocum’s back. The witness says it was dark; that the lights were on while he was in the saloon. Mr. Hardin, the former witness, pulled the Mexicans away from Slocum, and as Slocum started back to the saloon he heard one of the Mexicans say, “Vámonos pronto; subite el vagón,” which translated is, “Let’s go quick; get in the wagon.” Mr. Hardin pulled them off; the defendant and his brother had hold of Slocum, so did Dion-ieio Soto have hold of Slocum’s arm. This is the substance of the state’s case.

This is in some respects contradicted by the defendant’s testimony. The serious question in the case, to the mind of the writer, is whether or not the circumstances environ-ing this difficulty were such as to elevate it above manslaughter, but taking the state’s case as above detailed, we are of opinion that the jury was justified in finding that there was murder in the case; that is, that the stabbing and all the environments show malice and deliberation in the killing beyond the question of sudden passion from adequate cause. The weapon used was a knife. What character of knife is not shown, and did not seem to enter particularly into the trial of the case, but the evidence shows it was a large knife because it went in far enough to kill the man suddenly, and the evidence shows that the wound .was at least 5 inches in depth, a stab in character.

Under the facts detailed we would hardly feel justified in disturbing the verdict, and the judgment is therefore affirmed. 
      ®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 26
     