
    MERCADO v. STATE.
    (No. 8030.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.)
    1. Criminal law <©=>l l7ffi/2(5) — Refusal to permit cross-examination of witness as to matters affecting his guilt of offen.se charged to defendant held error.
    In a prosecution for murder, refusal to permit cross-examination of a witness, who had been found in possession of deceased’s pistol which he claimed to have purchased .from one who found it where supposedly thrown by defendant, as to a note written by him to an enemy of deceased’s, 'stating that he had killed deceased and requesting compensation therefor, held prejudicial error, though the court on motion for new trial interrogated and ascertained from the witness that if allowed to answer he would have denied same, the matter involved being material and the excluded answers a sufficient predicate for impeachment.
    2. Homicide <©=>174(1) — Evidence of conduct of accused’s brothers at scene of homicide in presence of officers held admissible.
    In a prosecution for murder, where the state relied upon circumstances concerning the movements and conduct of defendant and two of his brothers to connect them with the killing, evidence as to the conduct of the brothers in the presence of officers at the scene of the killing, while comparing tracks found in the mud with those of the accused parties, held properly admitted.
    3. Homicide <©=>305 — Defendant held entitled to instruction as to effect of his brother’s participation in or guilt of offense charged.
    In a prosecution for murder, where proof was-adduced tending to connect both defendant and his brother with the offense, defendant was entitled to an instruction, that though the jury believed his brother was instrumental in bringing about the death of deceased, his guilt would not affect defendant unless they acted together, or had formed a conspiracy, and that the conspiracy was carried into effect while defendant was present.
    4. Witnesses <©=>246(1) — Court may interrogate witnesses, but should not usurp functions of counsel.
    A trial court may ask any question which counsel had a right to and failed to ask, but it should not usurp the functions of counsel by prescribing the order of calling witnesses or interfering with the general conduct of the case, nor should it overlook in questioning witnesses the danger of impressing the jury with the idea that it questions the veracity of the witness or entertains views on the merits of the ease.
    
      5. Criminal law <®=655(4)— Conduct of court while qualifying the venire held improper.
    In a prosecution for murder the action of the court, while qualifying members of the venire and attempting to inform the jury what was meant by circumstantial evidence, in giving them an illustration by detailing the facts and result of a case within his knowledge, where the evidence was wholly circumstantial and similar to that involved in the case to be tried, and in stating that as a result two persons were • condemned and executed, held of questionable propriety.
    Appeal from Criminal District Court, Cameron County; J. C. George, Special Judge.
    Manuel Mercado was convicted of murder, and he appeals.
    Reversed and remanded.
    "Wells & Galbraith, of Brownsville, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   MORROW, P. J.

Appellant is' condemned to confinement in the penitentiary for life for the murder of Guillermo Sayas.

The deceased, in a Ford car belonging to ibis sister, left her home in Brownsville about 3 o’clock on Monday afternoon, expressing his intention to go to the appellant and obtain a pistol which he had previously delivered to him. Appellant, on the same afternoon, was at work on a Dodge car belonging to one Tomayo. The deceased came in the Ford car to Tomayo’s place of business, saw the appellant, and had an interview witihi him. Afterwards on the same day, they were seen together in a Ford ear in the city of Brownsville. Later in the same day, the deceased, riding in the Ford automobile belonging to his sister, was seen upon the public highway several miles east of Brownsville traveling away from the city. Two other persons were in the car, but were not recognized by the witness. The deceased spoke to the witness, who was well acquainted with the appellant and his two brothers, Jose and Higinio. The car was traveling in the direction of Higinio’s home, which was about 12 miles east of Brownsville, and about 2 miles from a point in the Rio Grande river where two or three days later the body of deceased was found. Appellant’s brother, Jose, was seen about midnight of October 30th at a point on the public road about 8 miles from Brownsville, traveling in the direction of San Benito, which we understand is 15 miles or more west of Brownsville. On the following Wednesday the body of the deceased was found in the Rio Grande river, a short distance from a certain bayou known as “bayuke San Ignacio.” Late in the night of October 30th there was seen standing, near the road and near the bayou mentioned, a Ford automobile. The lights were not burn-. ing, and no one was seen in or about it.

The Ford automobile which had been in possession of the deceased was found on Wednesday near the public road, about 30 miles west of the bayou, in the direction of the town of San Benito. The wind shield was shattered, and the cushion bore evidence of having been washed, and traces of blood were upon it. Succeeding the disappearance of’the deceased on Monday, there was found near the bayoú mentioned a piece of glass which fitted into the wind shield of the Ford ear mentioned. Tracks of an automobile near the road leading across the bayou were also observed, and near them were seen tracks of men wearing shoes or boots and one whose feet were bare, in socks. Boots were worn by Higinio Mercado, and shoes were worn by the appellant. At the time of the discovery of the body of the deceased, the feet were bare. Upon the body were five gunshot wounds and a .38 caliber bullet was found in one of the wounds. The body had been disemboweled, and the contents of the abdomen were not found. Between the time of the disappearance of the deceased and the time that his body was discovered a rain had fallen, and the ground from the bayou to the river was muddy. The tracks mentioned were examined. The appellant and his brother were taken to the locality and caused to walk on the soil. The tracks made by them coincided in size, shape, and peculiarities with those of the appellant and his brother Higinio. When the latter was caused to put his foot in one of the tracks, “he tried to press on it some as to make it deeper, and one of the officers in charge objected and told him to make it just like he was walking, without putting any weight on it, and the result was just perfect.” There was a peculiarity ih the heel of the appellant’s shoe which corresponded with the impressions in one of the tracks upon the ground. On the afternoon of October 30th, Jose Mercado in his Dodge automobile, accompanied by the appellant, was seen going in the direction of Higinio’s home, which was near the bayou mentioned. About dusk on the same day the appellant was seen near Higinio’s home.

After his arrest and while on his way to jail in an automobile with two officers, the appellant jumped out of the car and ran a short distance. He was recaptured within a few moments and lodged in jail. Some days later a witness bought a pistol which was of the same size and caliber as the pistol belonging to the deceased. According to the witness who bought the pistol, the person who sold it to him claimed to have found it in the alley through which the. appellant had traveled on the occasion of his escape from the car. There was some testimony to the effect that cartridges were also found In the alley through which the appellant had passed.

The foregoing is a synopsis of the state’s testimony. Much of it is sharply controverted by testimony introduced by the appellant. The person from whom the state’s witness claimed to have received the pistol denied that he had found or sold it. Appellant also denied that he had thrown it or cartridges upon the street or alley. He testified that the reason he jumped out of the car was to avoid an attack from one of the officers with whom he was riding.

An engineer who made the map introduced in evidence explained the data upon -which it was made and ibis method of making it. He gave testimony touching the topography and the character of the vicinity of the bayou mentioned. Much testimony was given attempting to account for the tracks relied upon by the state by the character of the place; also that there was br.ush and objects which might have been used to avoid making the tracks, and that, if made on the day of the disappearance of the deceased, they would have been obliterated by reason of the muddy condition of the ground. The place was public and near a freguented road.

The evidence that appellant was the person who was seen in the Ford car at a filling station in the city of Brownsville in company with the deceased was controverted not only by the denial of the appellant, but by other testimony to the effect that, when the deceased was seen, another person and not the appellant was with- him. The presence of Jose and Higinio at the ranch later in the day of the homicide was explained by Jose Mercado, who denied the presence of the appellant at the ranch. Jose Mercado, stated that it was his custom to visit bis brother Higinio and take him supplies in the car which he (JoseD used as a jitney.

Witnesses in addition to the appellant, who testified in his own behalf, supported the theory of alibi. Appellant disclaimed any enmity towards the deceased and explained his possession of the pistol of the deceased before the homicide with the- statement that the deceased’ was engaged in smuggling goods across the Rio Grande river, and desiring to take the pistol across into Mexico, and being afraid to take it himself, he requested the appellant to do so. Appellant decided that he was also afraid to do so, and the deceased on the day of the homicide obtained the pistol and said that he would take it over in person in the car.

The peculiarity described by the state’s witnesses in the shoes worn by the appellant was denied by him. The shoes which he wore at the time the tracks were examined were not produced. He claimed that he had loaned them to a soldier who was barefooted and who was with him in jail, and that the soldier took them away with him.

Numerous bills oi exception are found in the' record. All of them have been examined, but space forbids a discussion of those which are deemed to present no question of importance or difficulty, and relate to a matter not likely to arise upon another trial.

In support of its theory that the appellant was in possession of the pistol which belonged to the deceased, the state introduced the witness James Werbiski, a citizen of Mata-moras, Mexico. He was found in possession of ⅝ pistol which was introduced in evidence, and evidence was introduced tending to identify it as having belonged to the deceased. Werbiski accounted for his possession of the pistol upon the statement that he had purchased it from Pedro Saldano, a citizen of Brownsville; it being the theory of the state that, when the appellant left the automobile in which the officers were conducting him to jail, he was in possession of the pistol of the deceased; that -he had not been searched and that he threw the pistol in an alley near which Saldano resided and that Saldano found the pistol and sold it to Wer-biski. Saldano testified and denied that he had found and sold the pistol or that he had any knowledge of it. The cross-examination of Werbiski suggests that his possession of the pistol had in some way come to the notice of the officers at Matamoras and that he explained his possession of it by the claim that he bad purchased it from Saldano. According to his testimony, the transaction between him and Saldano was conducted with much secrecy.

During the cross-examination of the witness Werbiski the acquaintance of the witness with one Gerónimo de la Cruz and one Primopara was brought in evidence. There was testimony that the deceased had killed a near relative of Gerónimo de la Cruz. The witness Werbiski was asked if he remembered sending a note by Primopara to Gerónimo de la Cruz stating that he (witness) had killed Guillermo Sayas and requesting $150 as compensation therefor. The state’s objection against it was sustained. Appellant’s counsel then asked the witness a question in -different words, but the same in substance, when the court interposed and told counsel that the inquiry must not be repeated as the court had ruled against it. Counsel for appellant then asked if it was not a fact that Gerónimo de la Crux had paid the witness $150 on the claim that the witness had killed Guillermo Sayas. The court again interposed and prevented the answer. Counsel then asked -the witness if he had not undertaken to collect money from people in Matamoras on the claim that he had killed Guillermo Sayas. State’s counsel objected, and the court, in sustaining the objection, admonished counsel that he must not pursue the inquiry further, stating that it was the fourth time he had asked practically the same question. In qualifying the bill the court explains that he was not familiar ■with the Spanish pronunciation and did not comprehend that the inquiry related to the claim that he (witness) had received or demanded money for hilling the deceased, but that it referred to some other person. On hearing the motion for new trial, the court had the witness interrogated and ascertained from him that he would have denied killing Sayas and also denied making the demand for compensation and the sending of the note mentioned in the inquiry. It is apparent from the explanation of the bill that in the opinion of the learned trial judge his misapprehension of the inquiries mentioned led him into error in refusing to permit the inquiry. A new trial would have been granted if the witness had admitted that he would have given an affirmative answer to any of the questions. This court concurs in the view that appellant should have been allowed to make the inquiry of the witness. It is of the opinion, however, that the error was not cured by the procedure followed. The witness having been discovered by the officers in possession of a pistol identified as that of the deceased was called upon to explain. The explanation given by him was used by the state to connect the appellant with the possession of the pistol. This was of great importance to the state and much to the disadvantage of the appellant. It was his theory and testimony that he did not have the pistol of the deceased at the time, of the homicide or thereafter; that he did not throw it into the alley at the time he jumped out of the car or at any other time. The latter statement was corroborated by the person from whom Werbiski claimed to have received the pistol. It was competent for the appellant on cross-examination to show the motive of Werbiski for claiming that he had received the pistol from Saldano, and also to prove that Werbiski had committed the homicide. The questions propounded were directed to this end. If, while testifying against the appellant upon his trial, Wer-biski had given negative answers to the questions propounded, a predicate for his impeachment would have been laid, and his admission that he had killed the deceased would have been a matter of such materiality as to warrant impeachment, the state’s evidence being circumstantial. See Blocker v. State, 55 Tex. Cr. R. 31, 114 S. W. 814, 131 Am. St. Rep. 772. Even, however, if there was no impeaching testimony available to the appellant, the action of the court under discussion was a limitation upon his right beyond the discretion of the trial court. That the court made a ruling under a misapprehension of fact for which the appellant was in no sense responsible was not known to the jury, and the injury to the accused was not thereby prevented. If the witness had sworn falsely touching the inquiry upon the trial of the appellant, he would have been under the penalties of perjury. Whether such would have been the case on the hearing of the motion for new trial .is at least questionable.

It was shown by the state upon the trial of the appellant that his brothers, Jose and Higinio, were each indicted for the murder of the deceased, and that Higinio had been tried. The court instructed the jury upon the law of principal offenders. Circumstances were reliéd on to connect the appellant and his brothers, particularly Higinio, with the commission of the present offense. Evidence of various acts of Jose and Higinio were introduced in evidence against the appellant. The-movements of, Jose on the day and night upon which the deceased was missing were proved; also those ’of Higinio. There was evidence that part of the tracks which, according to the theory of the state, were found near the scene of the homicide were made by Higinio, and, after the arrest of the appellant and Higinio, they were taken by the sheriff and others to the point where the tracks in question were found, and there Higinio was required by the officers to make-traclcs and to put his foot into some of the tracks that were found. Evidence of his conduct upon that occasion was introduced upon behalf of the state. Objections to the introduction of evidence concerning the acts of Higi-nio and Jose were properly overruled by the court. These were circumstances tending to show a conspiracy, and, if a conspiracy was proved beyond a reasonable doubt, the acts of the brothers of the appellant were available to the state as evidence against him. If, however, the jury failed to believe beyond a reasonable doubt that the conspiracy had been proved, then the acts of Jose and Higinio which were introduced in evidence were not binding upon the appellant.

Although the jury might have believed that Higinio was instrumental in bringing about the death of the deceased, his guilt would have legally affected the appellant only in the event they acted together, or had formed a conspiracy to kill the deceased, and that the conspiracy was carried into effect while the appellant was present. The several special charges prepared by the appellant were appropriate to inform the jury of this principle of law. The law, in the judgment of this courts entitled the appellant to have the principle stated embraced in the charge either by amendment to the main charge or by reading to-the jury one of the special charges requested by the appellant. Luttrell v. State, 31 Tex. Cr. R. 493, 21 S. W. 248; Graham v. State (Tex. Cr. App.) 61 S. W. 714; Wallace v. State, 46 Tex. Cr. R. 341, 81 S. W. 966; Chapman v. State, 45 Tex. Cr. R. 479, 76 S. W. 477; Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 948; Wilson v. State, 70 Tex. Cr. R. 3, 155 S. W. 243. Many other cases illustrate this principle.

Numerous complaints are lodged against the action of the learned trial judge on account of' Ms interrogation of the witnesses. Appellant insists that the nature of the questions propounded were calculated to create in the minds of the jury the impression that the judge trying the case was unfavorable to the case of the appellant.

“On the trial of 'an action the court may ask questions which the attorneys had the right to propound, and failed to ask, but the court should not usurp the functions of counsel by prescribing the order of calling witnesses or interfering with the general conduct of the case by the attorneys, or by examining witnesses to the exclusion of counsel.” Ruling Case Law, vol. 26, p. 1025.

The propriety of interrogating in a given case and the danger of impressing the jury with the idea that in the mind of the court there is question touching the veracity of the witness, or that the judge entertains views of the merits of the case against either party, should not be overlooked. The jury seizes with alacrity any intimation from the judge, and naturally and justly attaches great weight to his opinion., Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141; Lagrone v. State; 84 Tex. Cr. R. 609, 209 S. W. 411.

An analysis of the numerous questions propounded to witnesses in the present case is not deemed expedient, inasmuch as the judgment is to be reversed upon other grounds, and the same matters are not likely to arise upon another trial.

In qualifying the members of the venire and in endeavoring to inform the jury what was meant by circumstantial evidence, the court gave them an illustration by detailing to them the facts and result of a certain case which had occurred within his knowledge upon the trial of which the evidence was wholly circumstantial and as a result of which two persons were condemned to, death and executed. Complaint is made of this in several bills of exception in which it is made to appear that the recital took place in the presence of practically all of the veniremen, including ten who were later impaneled on the jury. The specific complaint is made that the illustration selected was a homicide case bearing marks of similarity with the case of the appellant. As intimated above, the case will be reversed upon other grounds; but, in passing, the suggestion is made that, in making such an illustration, perhaps not an actual but a hypothetical one should be chosen. That as a result of the actual trial the accused was convicted and executed, to say the least, would be of questionable propriety, and might in a given case result in injury. The case selected by the court was one much stronger than the present. It did, however, have in it some points of similarity. Eor example, there was evidence that before thp homicide the deceased and the accused were together. Reliance was had in part upon the similarity of footprints found upon the scene of the homicide with those of the accused. Evidence touching horse tracks was also Introduced.

Because of the errors pointed out, the judgment is reversed, and the cause remanded. 
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