Kaparos v. State, 1810

• Decision Date: 14 November 1933
• Docket Number: 1810
• Citation: 46 Wyo. 316,26 P.2d 533
• Parties: KAPAROS et al. v. STATE
• Court: Wyoming Supreme Court

26 P.2d 533

46 Wyo. 316

KAPAROS et al. v. STATE

No. 1810

Supreme Court of Wyoming

November 14, 1933

ERROR to District Court, Sweetwater County; V. J. TIDBALL, Judge.

Mike Kaparos, alias Mehael Kaparudakes, was convicted of murder in the first degree, and he brings error.

Affirmed.

T. S Taliaferro, Jr., and A. L. Taliaferro, both of Rock Springs for plaintiff in error.

The verdict was unsupported by credible evidence; the main witness called by the prosecution was one Zinwdikis, who three days before had been convicted of murder in the first degree, without capital punishment, and who stood before the court as a murderer and a perjurer. His testimony in this case clearly shows that he was the guilty party. The facts in this case are almost identical with those in Jones v State, 26 Wyoming 293, where the Supreme Court, being unable to find sufficient substantial credible evidence to support the verdict, reversed the case. The court erred in refusing to give instruction numbered No. A, requested by plaintiff in error, with reference to the rule as to uncorroborated testimony of an accomplice. The substituted instruction numbered No. 26, given by the court, which included the words, "unless you are satisfied beyond reasonable doubt of its truth" destroyed the effect of the whole instruction. The jury should have been instructed, without any alternative, that the testimony upon the facts in issue required corroboration without which the jury should not convict. No jury should leave "the presumption of innocence," and become convinced beyond a reasonable doubt that a defendant is guilty solely upon the uncorroborated evidence of an accomplice. The effect of instruction numbered No. 26, as given by the court, destroys the effect of the well-established rule above referred to. A defendant has a constitutional right to be tried before a jury, clearly instructed as to the law. Smith v. State, 10 Wyo. 157; State v. Beish, 32 Wyo. 136; State v. Alderilla, 37 Wyoming 478.

The cause was submitted for defendant in error upon the brief of Ray E. Lee, Attorney General, Oscar O. Natwick, Deputy Attorney General and William C. Snow, Assistant Attorney General, all of Cheyenne, Wyoming.

The first contention of plaintiff in error is that the evidence is insufficient to justify the verdict. The record discloses that Kaparos and Zinwdikis were at the home of a neighbor on July 4th, where they had been drinking, leaving there about nine o'clock at night, both armed, to go to the O. K. Coffee Shop on K Street, and that the shooting which resulted in decedent's death occurred between 9:30 and 10:00 o'clock that night, in front of the O. K. Coffee Shop. There were no eye witnesses to the shooting, but three witnesses saw decedent fall, one of whom recognized plaintiff in error standing near decedent when he fell. It was also shown that plaintiff in error thereafter attempted to conceal a thirty-eight revolver which he carried. The movements of plaintiff in error and the witness Zinwdikis from the time they started down town; the circumstances attending the shooting of decedent and the arrest of plaintiff in error thereafter were all clearly shown by the testimony of impartial witnesses. It was also shown that a feeling of enmity existed between plaintiff in error and decedent because of a severe beating received by plaintiff in error at the hands of decedent on April 10th, at the Milonis home. Circumstances established by the testimony of twenty-eight witnesses clearly corroborate the estimony of Zinwdikis, the accomplice of the plaintiff in error, who testified for the state. The instruction numbered No. 26, complained of by plaintiff in error, was, in view of the evidence as disclosed by the record, a clear statement of the law and in view of the manifold circumstances, shown by the evidence, connecting plaintiff in error with the trial, fully sustains the verdict, and the judgment should be affirmed.

BLUME, Justice. KIMBALL, Ch., J., and RINER, J., concur.

OPINION

BLUME, Justice.

The defendant was accused of murder in the first degree, committed at about ten o'clock on the evening of July 4, 1932, upon one George Stavroulakis. Accused with him was one Mike Zinwdikis. Defendant demanded a separate trial. This was granted. Zinwdikis was tried first and he was convicted of murder in the first degree without capital punishment. Defendant, too, was convicted of the same crime, and the same penalty was meted out to him. From a sentence in conformity with the verdict, the defendant has appealed.

1. The main assignment of error herein is that the verdict is not sustained by sufficient evidence. This will necessitate a review of the testimony. It is voluminous and we shall point out only the most salient points. Among the principal testimony is that of the defendant's alleged accomplice, Mike Zindwdikis. The latter lived at Winton, some distance from Rock Springs; the defendant lived at Rock Springs. They appear to be second cousins. Zinwdikis' testimony is quite lengthy, and at times somewhat confusing as to just when certain things were said or done. The meaning of his testimony, too, is, at times, somewhat difficult to gather. We shall give the most outstanding points of his testimony, as we understand it, in direct narrative form, and this is as follows:

In the month of April, 1932, Mike Kaparos sent word to me several times for me to come to Rock Springs, reporting that he was sick. I finally complied with his request and saw him. He was bruised up considerably and had a black eye. He told me that he had had trouble with Charles Milonis and the deceased; that Milonis beat him up while Stavroulakis held him. He stated that he would take his revenge; that after the trouble the deceased had come to his house to excuse himself, but that he, Kaparos, had tried to get out of his bed "to catch the knife to cut the head off and throw out." I chided Kaparos for getting into trouble adjured him to give up his idea of revenge, and he promised to do so. After about ten days, I again came to Rock Springs and saw Kaparos. He again spoke of his trouble, and then stated that he would send both Milonis and the deceased to "Rogan's ranch" (Rogan has a funeral parlor at Rock Springs.) I again saw Kaparos some fifteen days after that, and he then asked me if I were coming to Rock Springs on July 4th; if so, for me to bring in my gun--a Luger--; that he wanted to use it, to revenge himself; that his own gun was no good. I told him "nobody was going to use my gun." I went to Rock Springs on July 3rd, 1932, carrying my gun with me. I left it at the house of defendant. In the afternoon, as well as the evening of that day, defendant urged me to stir up a fight with the deceased, which I refused to do. On that day and later, he spoke of having money--about a thousand dollars, which we could take, after the killing, and go away on. On the night of the third, I played "barbutti" all night, which is played with dice. I saw Kaparos the next morning. I said that I intended to play some more "barbutti" that day, and he again urged me to stir up a fight with the deceased. During the day I played at the O. K. Soft Drink Parlor. Many were playing, among them the deceased. Before I started, Kaparos called me over to where he was and said "now is a good time to start trouble," and I said "I don't want to start trouble." Defendant apparently then left. During the game a man from Reliance threw the dice "crooked," and I said "that's no dice," but everybody said that's dice, and so I said that if everybody say it's dice, it is so, and I pay. But I said that "everybody was colored," because "white men" would not tell a lie. The deceased thereupon said that there were others more white than I. I indicated that there might be trouble, and that some one might get killed, without naming anybody. The deceased told me that I couldn't kill anybody, that I had no "guts," and I said to deceased: "Well George, if anybody would like to see whether I have guts, try me some time at some place." The game lasted until about five or six o'clock. I then went to Kaparos' house, where I saw him. We soon thereafter went to the neighboring house of Mike Varonis, but before going, Kaparos handed me my gun, saying to take it along, which I did. He took his own gun and put it in his pocket. From then and until about fifteen or twenty minutes after nine o'clock, Varonis, Pete Pikakis, defendant and myself were together, drinking wine, and we became somewhat intoxicated. All of us then went out, to go to town. When we came to K street, Varonis and Pete Pikakis had preceded us. Kaparos again commenced to talk of killing Milonis and the deceased, asked me to help him, said I did not love him, etc. I finally said that I would help him and asked him if he had his money with him; he said he did, and I said "let's go." Kaparos wanted to go to Milonis' house first, to kill him. But about that time, we saw the deceased on K street, on the same side that we were on. Kaparos said "there is the one," and I said "All right, keep still." The deceased crossed K street before we did; defendant was close behind him. Both had crossed before me. I was held up somewhat by a passing car. When the deceased and Kaparos had crossed and had come close to a telephone post, in front of the O. K. Soft Drink Parlor, Kaparos took hold of the deceased, who asked "Mike, what do you want?" Defendant then called "Help, help," and I then shot the deceased in the back, seeing nothing more, and ran, but I think defendant went into the O. K. Soft Drink parlor. I ran down K street, Noble Drive, and finally toward the defendant's house, and found the defendant at home. I asked him if he had the money, and he said he had only a...