Nesteroff v. People

• Decision Date: 06 February 1922
• Docket Number: 10039.
• Citation: 205 P. 531,71 Colo. 208
• Parties: NESTEROFF v. PEOPLE.
• Court: Colorado Supreme Court

205 P. 531

71 Colo. 208

NESTEROFF v. PEOPLE.

No. 10039.

Supreme Court of Colorado, En Banc.

February 6, 1922

Rehearing Denied April 3, 1922.

Error to District Court, Routt County; Francis E. Bouck, Judge.

Costa D. Nesteroff was convicted of murder in the first degree, and he brings error.

Affirmed.

Joseph K. Bozard, of Steamboat Springs, and Arthur R. Morrison, of Denver, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Charles R. Conlee, Asst. Atty Gen., for the State.

BURKE J.

Plaintiff in error (hereinafter referred to as defendant) was convicted of murder in the first degree. The jury fixed the penalty at life imprisonment, and sentence was pronounced accordingly. To review that judgment defendant sues out this writ. Of his 27 assignments the following alleged errors are argued: (1) The refusal of the court to summon defendant's witness Louis Evanoff at the expense of the people under section 2005, R. S. 1908; (2) the giving of a portion of instruction No. 1; (3) the refusal of the court to appoint an interpreter; (4) conduct of the district attorney in asking insinuating questions and making improper comments in argument; (5) the insufficiency of the evidence to support the verdict.

1. The affidavit required by said section 2005, R. S. 1908, was made on behalf of defendant as to eight witnesses. Seven were allowed by the court. One of those was not used by the defense. Subpoena for Louis Evanoff was refused. It was contended that deceased, in conversation with this witness had threatened defendant. Defendant himself when on the stand was permitted by the court to recite Louis Evanoff's report to him of this alleged threat. The matter thus went before the jury, with no opportunity to the people to test it by cross-examination. Furthermore it appears to have been immaterial. The position of the defense was that the killing was accidental, and the court so instructed the jury without objection. Counsel for defendant admit that the issuance of the order as to this witness rested in the sound discretion of the court. The record clearly shows that discretion to have been properly exercised.

2. The portion of instruction No. 1 complained of was clearly not prejudicial, and, in view of the fact that no objection was made and no exception saved to this, or any other instruction, we deem it unnecessary to give it further consideration. Tollifson et al. v. People, 49 Colo. 219, 233 112 P. 794; Zall Jewelry Co. et al. v. Stoddard et al., 68 Colo. 395, 397, 190 P. 506.

3. A number of the witnesses were Bulgarians, who spoke English imperfectly. Questions and answers were frequently repeated and explained. Jurors, when in doubt, were encouraged to interrogate, and did so freely. The appointment of an interpreter was several times suggested. No objection was made or exception saved to the failure of the court to so act. The jurors were asked if they understood the witnesses, and answered in the affirmative. The appointment was discretionary, and no abuse is shown. People v. Morine, 138 Cal. 626, 72 P. 166; State v. Shea, 78 Wash. 342, 139 P. 203; State v. Inich, 55 Mont. 1, 173 P. 230, 234.

4. Certain questions asked by the district attorney assumed an attempt to bribe or intimidate people's witness Cheoskoroff. The latter himself testified that these acts had occurred. Defendant's witness Kabaroff demonstrated his partisanship. He admitted that defendant owned him money. The district attorney inquired if this fact influenced him. The question was clearly proper. In argument the district attorney referred to 'threats and intimidations' employed by 'friends of defendant' to prevent the people's witness Cheoskoroff from testifying. In view of the latter's testimony this comment was justified.

5. Defendant was charged with the murder of Pete Evanoff on July 10, 1920. A quarrel had arisen between them concerning a shovel. The people's witnesses say that a fight ensued in which defendant was worsted; that he went to his house near by, and within a few minutes returned with a singlebarrel shotgun, cursing deceased, calling him names, and saying, 'I show you now; I will kill you;' that a struggle took place, both men at one time having hold of the gun; that defendant 'jerked that shotgun, and the shot go off'; that deceased 'fell down on the ground'; that defendant said to a by-stander, 'Don't talk to anybody'; that...