Martinez v. People

• Decision Date: 05 May 1913
• Citation: 132 P. 64,55 Colo. 51
• Parties: MARTINEZ v. PEOPLE.
• Court: Colorado Supreme Court

132 P. 64

55 Colo. 51

MARTINEZ v. PEOPLE.

Supreme Court of Colorado, En Banc.

May 5, 1913

Error to District Court, Conejos County; Charles C. Holbrook Judge.

Jose Benedito Martinez was convicted of murder, and he brings error. Reversed and remanded.

Charles A. Johnson, of Durango, for plaintiff in error.

Benjamin Griffith, Atty. Gen., Charles O'Connor, Asst. Atty. Gen Fred Farrar, Atty. Gen., and Frank C. West, Asst. Atty. Gen for the People.

GARRIGUES J.

Jose Benedito Martinez was tried and convicted on change of venue to Conejos county, for the murder of Fortunata Campbell at Pagosa Springs. Motion for new trial was overruled, defendant was sentenced to the penitentiary, and brings the case here for review.

1. The murder is alleged to have been committed about January 16 1910. The deceased and Apolonia Gillam were at the time occupying the same house, and there is evidence showing that about midnight they heard some one prowling around on the outside; that the deceased went to the door and opened it, apparently for the purpose of seeing who it was, or what they wanted, when she was seized by the arm, pulled outside, and three shots fired into her body, from which she died. Apolonia Gillam testified that just before the shooting, when they heard some one outside, she went to the window and, looking out, recognized the defendant; that he moved away, and the shooting occurred very shortly thereafter. The defendant testified that he knew nothing about the transaction, was at home that night, and not around the deceased's house. Gallegos, a people's witness, testified that he was standing 50 or 75 feet from the house, and heard the shooting; that after the shots, he saw one Carillo coming from a livery barn across the creek, about 120 feet from the house, who, on coming up to him, said: 'Old Ben [the defendant] has killed Fortunata Campbell.' Carillo, called by the defendant, denied making the statement, and testified that he was not present at and did not see who did the shooting. The record is silent as to whether he heard the shots or personally knew anything about the homicide. Clark, a people's witness, whose deposition was admitted in evidence, testified: That a few days after the shooting he slept in a bunkhouse with defendant. That about half past 1 in the morning, he heard him exclaim: 'I shot her! I shot her! I shot her! I had to do it to save myself from the pen.' That he thought defendant was asleep, but did not know. The prosecutor in addressing the jury said: 'Carillo was going down there, and undoubtedly he saw what had taken place. * * * He came rushing up before he had an opportunity to think what he was saying, and said, 'Ben Martinez has killed Fortunata Campbell.''

2. The statement attributed to Carillo, that Old Ben had killed the deceased, was admitted in evidence over the objection of defendant, as a part of the res gestae. This was error. There is no phase of the case presented to us upon which this statement was competent. Carillo was not a participant, bystander, or witness to the transaction. He was in no way connected with it, or interested in the result, as far as the evidence discloses. One offering an oral statement made out of court must first prove the things necessary to qualify it as evidence; until this is done, it is hearsay and not res gestae. Salas v. People, 51 Colo. 463, 118 P. 992, 37 L.R.A. (N. S.) 252.

Res gestae may be broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood. They are the events themselves speaking through the instinctive words and acts of the participants, the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. Denver City Tramway Co. v. Brumley 51 Colo. 254, 116 P. 1051; Graves v. People, 18 Colo. 177, 32 P. 63; Herren v. People, 28 Colo. 23, 62 P. 833; Salas v. People, 51 Colo. 463, 118 P. 992, 37 L.R.A. (N. S.) 252; McBride v. People, 5 Colo.App. 91-98, 37 P. 953. That it was error to admit this evidence we have not the slightest doubt; but whether it was so prejudicial to defendant's rights as to warrant a reversal of the case has given us some concern. In view of another trial, we do not care to comment on the strength of the people's evidence...