Gonzales v. State

• Decision Date: 08 January 1964
• Docket Number: No. A-13355,A-13355
• Citation: 388 P.2d 312
• Parties: Jose GONZALES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 312

388 P.2d 312

Jose GONZALES, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13355.

Court of Criminal Appeals of Oklahoma.

Jan. 8, 1964.

Syllabus by the Court

1. True test of criminal responsibility, where the defense of insanity is interposed, is whether the defendant had sufficient reason to know right from wrong.

2. Presumption exists, in absence of contrary showing, that jury is composed of impartial and qualified jurors; and defendant who waives his eighth and ninth peremptory challenges can not be heard to complain that he did not obtain competent jury.

3. The manner and extent of examination of jurors, touching their qualifications, cannot be prescribed by any definite, unyielding rule, but rests to a large extent in the sound discretion of the trial judge. In the examination, such latitude should be given the parties as will enable them to procure a jury free from outside influence, bias, or personal interest.

4. A partial opinion or impression derived from newspaper, radio and television accounts and from neighborhood rumor does not disqualify a juror, provided the court is satisfied by the declaration of the juror, under oath, that he can and will act fairly and impartially on the matters to be submitted to him.

5. The weight and credibility of the opinion of an expert witness is a question for determination of the jury.

6. Before conviction can be reversed for error in admission or rejection of evidence or instructions, appellate court must determine that appellant was injured thereby, and question of appellant's guilt or innocence of offense charged must be considered.

7. Whether or not the court should adjourn at 6 p. m. until the next day, when closing argument was half completed, was a matter in the discretion of the trial court, and this Court finds that he did not abuse his discretion in refusing to do so.

8. Where evidence supported conviction for murder, and record contained nothing which would prejudice defendant in his substantial rights, judgment of conviction and sentence to life imprisonment in the state penitentiary should be affirmed.

Appeal from the District Court of Bryan County; Ralph B. Hodges, Judge.

Jose Gonzales was convicted of the crime of murder, sentenced to life imprisonment in the state penitentiary, and appeals. Affirmed.

Louie Gossett, Alan B. McPheron, Durant, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

JOHNSON, Presiding Judge.

The plaintiff in error, Jose Gonzales, hereinafter referred to as the defendant was charged in the district court of Bryan County with the crime of murder; was tried, convicted, and pursuant to the verdict of the jury sentenced to serve the balance of his natural life in the State Penitentiary. Appeal has been perfected to this Court.

The State proved that Denny D. Impson, the father-in-law of the defendant, was killed by defendant on September 5, 1962. A statement of the evidence becomes necessary.

The deceased and his wife Manota Impson lived in the country a short distance from Bokchito, in Bryan County. Their daughter who had been working in New Jersey returned to their home, and a few days later, on May 18, 1962 the defendant came from New Jersey to their home. On May 23, 1962 the deceased, his wife and daughter, and the defendant went to Paris, Texas, and the daughter and defendant were married. Soon thereafter the Impsons or some relative of theirs, found employment for the defendant at Pawhuska, Oklahoma, and he and his wife went there to live. The Impsons subsequently visited them a couple of times, and on the second trip Mr. Impson remained in Pawhuska with his daughter, and Mrs. Impson returned to their home. After about two weeks Mrs. Impson went back to Pawhuska to bring her husband home. On July 14, 1962, after the defendant had gone to work, the impsons left Pawhuska, taking their daughter and her personal belongings with them.

The State introduced the testimony of seven witnesses.

A taxi driver testified that he picked the defendant up in Durant at 10:15 the night of September 5, 1962 and took him to a cross-road outside the town of Bokchito.

Mrs. Impson testified that her home was less than a quarter of a mile from the cross-roads where the defendant got out of the taxi. That she had not known defendant until he came to her home on May 18, 1962. She testified about visiting her daughter in Pawhuska and bringing her home, and that the daughter secured employment at the Bryan Memorial Hospital. Her hours were from 11 o'clock p. m. to 7 o'clock a. m.

Mrs. Impson stated that on the afternoon of September 4, 1962 the defendant appeared at their home and stated that he came to tell them good-bye, and asked for a drink of water, then left. That she and her husband took their daughter to work on the night of September 5 and remained at the hospital until 11 o'clock, then drove home, a distance of some 18 miles. That they had an electric lantern on the front porch, and left it burning, but as they drove up they saw that the light was out, and later found that the wires had been cut. Mrs. Impson was driving, and when they turned into the drive-way the car lights shown on the porch, and she saw the defendant getting out of a chair; that he started comming toward them, and immediately fired a gun, the shot passing through the glass of the car door on the driver's side, and striking her in the side of the face. That her husband quickly got out of the car and asked the defendant to 'let's talk this over', but defendant walked around from her side of the car to the back, and started shooting, and her husband fell. That he then came to her side of the car, opened the door and grabbed her by the hair and asked her, 'Old lady Impson, are you dead? If you're not you will be', and shot her again, this bullet going through her hand and and lodging in her purse. That he went back towards the house, and after things became quiet she raised up and saw the defendant sitting in a chair under a tree, and he was smoking--she could see the light of the cigarette. That he started back to the car and she laid down in the seat, and he grabbed her hair again and asked, 'Are you dead?' and shook her around. She made no move, and he slammed the door of the car, and in a short while she raised up and saw a light in the house, got out of the car and ran to the nearest neighbors and asked them to call the officers.

B. L. Williams, deputy sheriff, testified that he received a call at 11:50 the night in question to come to the Impson place. That he and the sheriff left Durant and when they reached Bokchito they picked up the town marshal and proceeded to the Impson home. When they arrived they found the defendant sitting under a tree in the yard with a gun in his hand. When ordered to throw the gun down, he complied, and witness searched him and placed handcuffs on him. That Mr. Impson was dead, lying on the ground near the front of his car. They picked up another gun near his body which was loaded, but none of the bullets had been fired. This witness stated that the gun he took from the defendant was a 9-shot .22, and contained 9 loaded shells. He found 7 or 8 empty shells near the back door of the house. He and the sheriff took the defendant to Bokchito and placed him in jail, leaving the town marshal at the Impson home. He secured an ambulance and they went back for the body.

Bill Templeton, sheriff of Bryan County, corroborated Mr. Williams, and also testified that they found a pint bottle of Old Crow whiskey one-third full sitting on the ground near the defendant.

Bill Cathey, town Marshal of Bokchito, corroborated the other officers, and all three testified that the defendant had been drinking when arrested, but they did not consider him drunk at that time. All three testified that he was very drunk an hour and a half or two hours later when he was transferred from the Bokchito jail to the county jail at Durant.

Dr. Robert E. Engles testified that he examined the body of the deceased about ten o'clock the morning of September 6, and found a total of eleven penetrating wounds in the body, caused by small calibre bullets; six wounds in the head, two in the front and one in the left side of the skull, and three penetrating the back of the skull; and found five bullet wounds in the back in the chest area. He testified that any one of the bullets could have caused death.

The defendant first called the county attorney, and inquired about the bottle of whiskey found at the Impson residence, and about the condition of the defendant as to being intoxicated. Witness testified that it was an hour and a half or two hours after the homicide when he saw the defendant, and that he was very drunk at that time.

Dr. Engles was called by the defendant, and the following hypothetical question was propounded:

'By Mr. McPheron: Doctor, I will ask you a hypothetical question: Assume that the defendant, Jose Gonzales, is a male of Puerto Rican descent, 23 years old, that he had been happily married, that his mother-in-law and father-in-law had taken their daughter, his wife, away from him and had not let him know that she was leaving, and that subsequent thereto his wife filed suit against him for divorce; that the divorce suit was filed against the defendant on July 24, 1962 and that the defendant was not notified of the same until September 4, 1962, and that the deceased and his wife refused to allow the defendant to talk with his wife, either by telephone or in person, and had directed him to stay away from their home; and that on the night of September 5, 1962 the defendant was waiting on the porch of the deceased's house for an opportunity to see and talk with his wife; and that the deceased got out of his car with a revolver in his hand gesturing toward the defendant and that the defendant shot the deceased 11 times, some of the shots...