Gallegos v. People
| Decision Date | 24 March 1947 |
| Docket Number | 15791. |
| Parties | GALLEGOS v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied April 14, 1947.
Error to District Court, City and County of Denver; Joseph E. Cook Judge.
Juan Frederico Gallegos was convicted of murder of the first degree, and he brings error.
Judgment affirmed.
Foster Cline and Sidney A. Emeson, both of Denver, for plaintiff in error.
H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen for defendant in error.
Plaintiff in error to whom we hereinafter refer as defendant, was found guilty of murder of the first degree and sentenced to death for the killing of Ida Baca, hereinafter mentioned as deceased. To review the judgment the case is here on error.
The record discloses that in March, 1945, defendant came to Denver for the ostensible purpose of buying a truck, but being unable to obtain a permit authorizing the purchase, he thereafter continued to work in Denver, where he remained until the time of the tragedy. In the same month he met deceased in a Larimer street cafe. He bought drinks for her and they rented a room where they remained all night together. This relationship continued for weeks. Defendant's wife and four children came to Denver to reside in June, but this did not seem to interrupt his illicit relations with deceased. They drank together, he gave her money every day, and continued, more frequently, to stay with her all night. He testified he thought so much of her he wanted to be with her all the time. The night Before the tragedy they occupied a room on Larimer street. Next morning she complained about the accomodations. They quarrelled and she cursed him. He put on his clothes and said he was going home, but she insisted that he was going to live with her. He said it was hard to leave his family and this provoked more abuse from her. Finally, he went home, and, finding his wife dressed, accompanied her to the cafe where she worked. There he met and drank whiskey with a couple of soldiers. During the day he drank some wine and beer, met and quarrelled with deceased again, and she told him she would go with any one she cared to. It is not denied that deceased was a woman of promiscuous character, that she may have had some affection for defendant, but because of his refusal to leave his family for her, she had concluded to break off her relations with him. At 4 o'clock that afternoon they were together again in a cafe on Larimer street. They had another violent quarrel in which defendant was heard to say that if she did not go with him she wouldn't go with any one else. Employees of the cafe requested them to stop quarreling and be more quiet, whereupon he left and went to a cafe a block away on Larimer street, where he obtained his pistol, which he had left there some time Before, went to the wash room, loaded it and returned to the cafe, where deceased was sitting on a stool at the bar. He testified he thought he sat down at a table; other witnesses testified that he did; he also testified he thought she said something; other witnesses said she did not. In any event he stood up and shot her in the back of the head killing her instantly. He ran out and back to the cafe where he had secured his gun, and attempted to take his life by slashing his throat and thrusting a knife into his mouth. In this attempt he was unsuccessful and quietly surrendered to the officers who took him to the hospital where he recovered in a few days.
Defendant assigns as error: 1. The verdict was the result of passion and prejudice. 2. Conscientious citizens opposed to capital punishment were excluded from the jury. 3. The deputy district attorney who tried the case was guilty of misconduct. 4. The court erred in refusing to give an instruction as to defendant's theory of the case.
1. Under this assignment it is contended that the verdict was the result of passion and prejudice because a witness for the people testified falsely concerning defendant's condition on the day of the shooting and that the deputy district attorney knew such testimony was false when given, in that it was contrary to a written statement given to the police following the tragedy. The witness testified on direct examination, that on the evening of the tragedy, he observed defendant, and that he was not drunk. On cross-examination he stated that defendant was not intoxicated, but that he might have had a few drinks and he admitted that he had made a signed statement at the police station. On redirect examination he said, On recross-examination he was asked if he did not say that defendant was not drunk but that he had been drinking, he admitted that he had made the statement, and, upon being asked how he reconciled it with his statement that there was nothing to indicate defendant had been drinking, explained that defendant probably had two or three beers 'because persons who frequent taverns, generally do.' Witness explained he had never been involved in any kind of a case Before, but that if the record showed that he had said defendant was not drunk but had been drinking, it probably was true. Throughout his examination, he continued to testify that defendant was not drunk when the crime was committed. In this testimony he was corroborated by Joe Tamburello, Viola Valdez, and Frank Alba.
The mere fact that sworn testimony may differ from extrajudicial statements does not constitute perjury. This is particularly true where the discrepancy, if any, is extremely slight, as in the case at bar. The questions of credibility of witnesses and of the weight to be given to the testimony of each were submitted to the jury under proper court instructions. The record discloses no misconduct on the part of the assistant district attorney.
2. It is next urged that the jury was not properly selected because conscientious citizens, who were opposed to capital punishment, were excluded theefrom. The court sustained challenges interposed by the district attorney to several prospective jurors, each of whom had stated on voir dire examination that, under no circumstances would he vote to impose the penalty of death in the event he was selected as a member of the jury and found defenda...
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