
    ESPALIN v. STATE.
    (No. 6420.)
    (Court of Criminal Appeals of Texas.
    Nov. 23, 1921.
    Rehearing Denied Jan. 25, 1922.)
    I. Statutes <&wkey;l65 — Where Legislature by specific designation makes acts penal under existing statute punishable by different penalty and essentially .changes ingredients of new offense, .it removes them from former classification..
    When the Legislature selects certain acts, 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 former classification and must thereafter be in the class placed by the new act.
    ,2. Homicide <&wkey;>!02, 279 — Killing trespasser taking melons from patch not justified as a matter of law; statute held not to affect right of defense of property.
    One who kills another while the latter is engaged in an act comprehended by Vernon’s Ann. Pen. Code 1916, art. 1234, providing a fine for taking melons from a patch, etc., cannot, as a matter of law, claim such act to be justifiable homicide, but one’s right to act in defense of property as given under articles 1105, 1107, is not affected thereby.
    3. Homicide @=^303 — No error in refusing charge not called for by evidence.
    In a prosecution for homicide, where deceased was shot in accused’s melon patch, where there was no evidence connecting deceased with melons already severed from the vines, it was not error to refuse a charge that deceased met his death while entering the premises to steal melons already severed.
    4. Criminal law <g=3( 173(3) — Where verdict found defendant guilty on second count only, no error from refusal of instruction on first.
    In a prosecution for murder, where the indictment contained two counts, one charging guilt as a principal and the other as an accomplice, where the jury found defendant not guilty on the first count, no injury arose from the refusal of an instructed verdict on that count.
    5. Homicide <&wkey;>28l — No error in refusing instructed verdict of acquittal, if evidence showed jury question.
    In a prosecution for murder, where the killing was with a rifle furnished by defendant, if it appeared from evidence that defendant directed G. to kill any man who crossed his fence, this would present a jury question as to defendant’s being an accomplice, and there was no error in refusing a motion for instructed verdict of acquittal.
    6. Criminal law <&wkey;528, 673(4) — Confession of principal cannot be used to establish guilt of accomplice and effect of evidence must be limited in charge.
    On trial of an accomplice, the confession of the principal can be used for no other purpose than to establish the guilt of the principal, but such confessions are not limited to the bare facts of the'physical act of inflicting death, but include such statements as show malice, deliberation, etc., and the purpose and effect of such evidence must be carefully guarded in the charge.
    7. Criminal law &wkey;>695(6) — General objection not sustained to statement, part of which is admissible.
    It is not the duty of the court to sustain a general objection to a document or statement, some part of which is pertinent and admissible.
    8. Homicide t&wkey;>338(l) — Voluntary statement of witness regarding orders to watchman to shoot trespassers held harmless.
    In a prosecution for murder, where accused was charged with having ordered one of his men to shoot any one entering his melon patch, a statement by a witness regarding the orders, not in response to any question, held harmless; it being susceptible of construction that he had given similar orders to other watchmen.
    9. Criminal law (&wkey;>728(4) — Objection to opponent’s counsel’s arguments should not be general.
    One who desires to object to the argument of his opponent’s counsel should not do so by selecting a number of separate disconnneeted paragraphs of such address and direct a general objection thereat.
    10. Homicide &wkey;>249 — Testimony on trial of accomplice held ample to convict.
    In a prosecution as an accomplice for murder, evidence that the hilling was at the direction of accused, if believed, held ample to convict.
    On Motion for Rehearing.
    11. Larceny <&wkey;2 — Automobile stealing statute held not repealed.
    Yernon’s Ann. Pen. Code 1916, art. 1234, providing fine only for taking melons from a garden, is not similar to article 1259a, making the temporary taking of another’s automobile a misdemeanor, and such article did not supersede or repeal the article punishing the stealing of automobiles.
    12. Criminal law <&wkey;722'/2 — Referring to defendant as this killer not inflammatory.
    In a prosecution for murdef, where it was shown that defendant had been indicted at a former time for murder, and his orders to shoot to kill any one climbing over his fence were in evidence, reference in argument to defendant as “this killer” was not of such inflammatory character as called for reversal.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Francisco Espalin was convicted of being an accomplice to the crime of murder, and he appeals.
    Affirmed.
    Winter, Goldstein, Miller, McBroom & Scott and Jackson, Isaacks & Eryer, all of El Paso, for appellant.
    C. L. Yowell and A. J. Harper, both of El Paso, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

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 15 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 inclosed by wire fences. Prior to the date of this homicide he had employed various parties, among then 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 Oaples, 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 inclosure, 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 Capíes, his companion, had gone into the melon patch in question in the nighttime 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, Yernon’s P. 0., 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. O., 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 $100. 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 rules 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. Cr. R. 23, 218 S. W. 1048, 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 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 123-i ■supra, could not, as a matter of law, claim such act to be justifiable homicide; but this in no wise affects one’s right to act in defense of property as given under article 1107, Vernon’s P. O. 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, 31 Tex. Civ. App. 688, 75 S. W. 345, Slack v. State, 67 Tex. Cr. R. 460, 149 S. W. 107, and Davis v. State, 81 Tex. Cr. R. 450, 196 S. W. 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 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 theft, the killing would be unjustifiable. But, if, in fact, deceased was stealing corn in the nighttime, 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 wagonload 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 coriduct 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 Capíes, 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 Capíes 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 50 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 Capíes, 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 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 to 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; Simms v. State, 10 Tex. App. 131; Crook v. State, 27 Tex. App. 239, 11 S. W. 444; Hamlin v. State, 39 Tex. Cr. R. 604, 47 S. W. 656; Thomas v. State, 43 Tex. Cr. R. 23, 62 S. W. 919, 96 Am. St. Rep. 834; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41; Sapp v. State, 87 Tex. Cr. R. 606, 223 S. W. 459. 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 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 con-' fession 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 cut 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 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 appear 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 any one 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 Oaples 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.

On Motion for Rehearing.

Appellant strongly urges error in our conclusion that the taking of melons from the patch is not theft under the present law, and that the killing of a person who was in the act of taking such melons from the patch was not justifiable homicide under article 1105, Vernon’s P. C. It is also insisted that the case of Grant v. Haas, 31 Tex. Civ. App. 688, 75 S. W. 345, was not correctly interpreted by us, and that same is authority for the contention of appellant that taking melons at night is theft. We have again examined said authority carefully. The statement therein that article 790 of the Penal Code of 1895 makes the theft of melons a misdemeanor is wholly erroneous, and the sequent reasoning of the learned court, based on such erroneous conclusion, must fall with .the false premise. Article 790, Penal Code 1895, makes the taking of melons a misdemeanor, but not theft. What we have just said about the ease of Grant v. Haas, and other cases cited by appellant, led us in the opinion herein to say that the question of whether taking melons was malicious mischief or theft was not raised or discussed in said case, or the others cited, and that the expressions of the courts in any opinion must be construed in the light of the facts and issues in the individual ease then under consideration. We further observe that we have no authority to overrule a decision of the civil courts, however much we might differentiate or decline to follow any opinion therein rendered. We can go no further than to say that the issue now made in the instant case, as to whether the taking of melons from a patch is theft or malicious mischief, was not before the courts rendering the opinions under discussion, and that we decline to be bound by the announcement of said courts, if based on a mistaken .view as to the character of offense made by said article 790, which is present article 1234, Vernon’s P. C.

We also regret that we cannot agree with distinguished counsel for appellant in their interpretation of Sparks v. State, 76 Tex. Or. R. 263, 174 S. W. 351. In that case Sparks was convicted of felony theft; the property taken being an automobile of the value of $1,000, and the prosecution being under the general statute making it felony to fraudulently take property of the value of more than $50. The sole question on appeal in said case was whether by a later act of the Legislature, making the theft of an automobile of the value of $35 and over a misdemeanor, the general law of theft was in effect repealed as to such automobiles, so that the prosecution for felony therein must fall, and a conviction therefor be reversed. The court so held in said ease. This is the same principle here announced by us. Mr. Black, in his Interpretation of Laws, c. 4, § 53, says that, if two legislative acts are positively repugnant so that they cannot be reconciled and made to stand together by any fair and reasonable construction, then the one last passed will control and will repeal the earlier law. As we understand it, it makes no difference whether the later law be more or less specific or general; the effect of utter repugnance in the two being the same in either case. In the Sparks Case, supra, the prior law forbade the taking of any and all property over $50 in value, under pain of felony penalites. The later enactment under discussion took from the general list of such property automobiles, and decreed as to them, if of value of more than $35, that such taking should only be a misdemeanor, and this court held that the later law must prevail and be that under which the accused should have been tried. In the instant case the prior law made the fraudulent taking of melons, with intent to appropriate same and to deprive the owner of the value, theft, punish-’ able by imprisonment and fine, or by penitentiary Confinement, as the value might appear. The later enactment, being article 790, supra, decreed that the taking of melons, fruits, vegetables, etc., from the farm orchard garden, or vineyard of the owner without his consent, should be a misdemeanor punishable only by a fine not exceeding $100. The taking referred to in the later act was without qualification, and necessarily included all taking when from the orchard, vineyard, field, or patch. This manifest inclusion of all taking under the terms of the later act must be held to evidence the legislative purpose to make the taking of melons, etc., punishable only as there prescribed, and as to the articles therein named to repeal the prior theft l'aw.

Nor can we assent to appellant’s proposition that after the act of 1913 — which was the later law under discussion in the Sparks Case, supra — was amended by chapter 105, Acts Regular Session 1915 (which amendment merely eliminated from said law the word “steal”), said law became and now stands on a parity with, and is similar in effect to, article 1234, supra. Said law, as amended by legislative act of 1915, is now article 1259a, Vernon’s P. C., and was held by this court in Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869, to refer only to one who, without the consent of the owner of a car, takes same and drives or operates it on or in one of the public places named therein. The character of taking contemplated by said article is not permanent but temporary, and we do not think same was intended to supersede or repeal, as applicable to automobiles, the law of theft, either felony or misdemeanor.

Appellant also urges that we erred in holding to be of no injury a statement volunteered by witness Emilia Rodarte, wife of Garcia, the employs of appellant who fired the fatal shot producing the homicide complained of in this case. Said witness on cross-examination by appellant is shown by bill of exceptions No. 10 to have volunteered the statemefit:

“Since my husband was arrested Mr. Espalin went over to see the watchmen down there, and told them 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.”

It appears from the bill of exceptions that said statement was first made in Spanish to the interpreter, and that before being interpreted the objection was giade that said answer was not responsive, and it is stated in said bill that the trial court understood the Spanish language “sufficiently so that it was evidenced that said testimony was not relevant,” but that the court permitted said answer to be interpreted and then sustained appellant’s objection, and instructed the jury not to ponsider same. We understood from the bill of exceptions, approved without qualification, that the court below did understand the statement made in Spanish, and were of opinion that, if this was true, the court below should have sustained appellant’s objection on the ground that the answer proposed to be interpreted was not responsive. Granting which error, we were called upon to say whether same was such as that the matter complained of might have resulted in injury to appellant. There is nothing contained in the bill showing any surrounding facts, either before or after the objectionable statement of the witness, from which we are enabled to conclude any circumstances for. or against same. The most we could make out of said statement, as detailed in the bill, was that after the husband of witness was arrested appellant told the other watchmen in his employ that if inquiries were made of them by the sheriffs they should tell the officers that he had given to them orders such as Jose Mosqueda said, instead of going and saying what was not the truth. We are not apprised by the bill what kind of orders TTose Mosqueda said.,or anything relative thereto, and if appellant told the other watchmen not to go and say what was not the truth, this would have been comm'endable and could not have hurt his cause. We are bidden by all the rules to find out from the bill of exceptions presented to us what wrong was done, or injury, if any, inflicted, in the matter complained of. We find ourselves, after a careful review of this matter, of the same mind as before — that no injury is shown.

We do not think the statement by the prosecuting attorney, in which he referred to the appellant as1 “this killer,” of such inflammatory character as to call for a reversal. It was shown by the evidence that appellant had been indicted at a former time for murder, and it was in testimony by Garcia and his wife that appellant told Garcia to shoot to kill any person who might come over his fence. We cannot see anything so prejudicial in the use of the words indicated as to injure the rights of the accused.

Finding no matter in the motion which leads us to conclude we were in error in our former judgment, the motion for rehearing will be overruled. 
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