Nevarez v. State
| Decision Date | 30 March 1921 |
| Docket Number | Criminal 502 |
| Citation | 22 Ariz. 237,196 P. 449 |
| Parties | GASPER NEVAREZ, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Greenlee. Frank B. Laine, Judge. Affirmed.
Mr. E V. Horton, for Appellant.
Mr. W J. Galbraith, Attorney General, Mr. Geo. R. Hill and Mr. Wm A. Harkins, Assistant Attorneys General, and Mr. Dave W Ling, County Attorney, for Respondent.
The appellant, Gasper Nevarez, charged by information with the murder of one Eusebio Galaves, was convicted of manslaughter and given an indeterminate sentence of from five to six years in the state's prison. From the judgment and from the order denying a new trial, this appeal is prosecuted.
The errors complained of deal entirely with the instructions. In his charge to the jury the court defined the different grades of homicide and submitted, along with other forms of verdict, one for manslaughter. Appellant contends that there is no evidence to support a verdict for manslaughter, and that only murder in the first and second degrees should have been submitted. There was no question but that the homicide charged was committed by the defendant. His plea was that of self-defense. The evidence was conflicting, but it substantially appeared therefrom that on the afternoon and evening of June 20, 1920, the defendant was at the home of deceased, in the town of Morenci, on three separate occasions somewhat under the influence of intoxicating liquor and with a pistol on his person. The purpose of his first visit, which was about 4 or 5 o'clock, seems to have been to ask his friend Atanacio Arras to leave the premises of deceased because another friend of his, by name Modesto Perez, had been beaten up there that afternoon by deceased. Arras and the defendant went away -- not at the same time, however. The defendant returned some later in the afternoon -- perhaps about 6 or 7 o'clock -- and, according to the testimony of the wife of deceased, invited Galaves to search him, stating that he had no arms. Defendant left the second time, but was away only a few minutes, returning about 7 or 8 o'clock, when the shooting occurred. Each time defendant went only to the fence in front of deceased's yard, the latter remaining in the house until the defendant appeared the third time.
It appears from the testimony introduced by the state that the defendant, upon arriving there the third time, held one arm in his hand and called deceased, who was in the house, outside to fight; that the deceased, unarmed, went out of the house through the gate to the road near where defendant was standing; and that as he approached defendant he was shot five times, death ensuing immediately. The wife of the deceased, Santos Ponce, and her nine year old daughter, Nerez Chavez, and one Concepcion Aguao, testified that deceased did not have a knife as he approached defendant, but that a knife, half open, was found near deceased's body about an hour after the shooting. Immediately after the homicide the defendant went to his room, changed part of his clothing and left Morenci. He was arrested five days later in Duncan, with a pistol in his pocket, denying at the time that he was Gasper Nevarez.
The evidence on the part of the defendant of the occurrences during the afternoon up to within a few minutes previous to the killing did not differ materially from that of the state, but the detailed account of the shooting and the incidents immediately preceding and leading up to it, given by the defendant and his witnesses, varied greatly from the state's testimony. It appeared from the evidence of the defendant, who was substantiated in most particulars by his witnesses, that he went to the fence in front of deceased's home to speak to his friend Atanacio Arras, who had returned to deceased's home, to persuade him to leave there, and that Arras told defendant he was going after a little, when deceased stood up and said that Atanacio Arras was not going because he (defendant) did not boss Atanacio. The deceased then went to the fence, and, while remaining inside with the defendant outside, hit the latter in the mouth with his hand. When defendant asked him why he did this, deceased went out of the yard toward defendant, who said he did not want to fight, but, in reply to defendant's question asked the second time as to why he hit him, the deceased hit him again and said that he did it because he could, or, according to some of the witnesses, because "he had nuts," and at the same time pulled an open knife from his pocket. Upon seeing the knife, defendant started to run, when he stepped on a water-pipe and stumbled, falling almost to the ground with the deceased pursuing him. In a half upright position he fired the first shot, immediately rose to his feet, and, while backing away, fired four additional shots. On cross-examination he testified that he ran away when he got up because he was scared.
In the foregoing the facts are stated with sufficient particularity to enable the court to determine whether there was error in defining manslaughter, and in conformity therewith submitting it to the jury in an appropriate form of verdict. It is elementary that the court should define for the jury every degree of homicide of which the accused, under the evidence, can be convicted. State v. Baker, 13 Mont. 160, 32 P. 647; Stokes v. Territory, 14 Ariz. 242, 127 P. 742. The evidence in behalf of the state demanded that the court define and submit the crime of murder, which necessarily means that a conviction for that offense would have found support in the record, while the version of the affair given by the defendant and his witnesses, if believed by the jury, would have justified a verdict of not guilty. The court evidently was of the opinion that the jury might accept the testimony of neither side completely, but only in part, and in so doing be led to a verdict for neither murder nor an acquittal. For instance, if it believed, as it well might, that the defendant went to the home of the deceased for a legitimate purpose, to wit, to persuade his friend Arras to leave there, without any intention whatever of having trouble with deceased, and that while there he and deceased, both drinking, began a quarrel, resulting in a fight which ended in the shooting, the only verdict that could properly have been reached was that of voluntary manslaughter, which is the "unlawful killing of a human being without malice, upon a sudden quarrel or in the heat of passion."
The cases cited by appellant -- Leseney v State, 13...
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State v. Rodgers
...evidence of flight immediately following the commission of a crime. State v. McLain, 74 Ariz. 132, 245 P.2d 278 (1952); Nevarez v. State, 22 Ariz. 237, 196 P. 449 (1921). In State v. Owen, 94 Ariz. 404, 385 P.2d 700 (1963), rev'd on other grounds, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 104......
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