Nunez v. State

• Decision Date: 03 July 1963
• Docket Number: No. 3142,3142
• Citation: 383 P.2d 726
• Parties: John C. NUNEZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 726

383 P.2d 726

John C. NUNEZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3142.

Supreme Court of Wyoming.

July 3, 1963.

Brooke Wunnicke, Cheyenne, Thomas M. McKinney, Basin, for appellant.

John F. Raper, Atty. Gen., and W. M. Haight, former Deputy Atty. Gen., Dean W. Borthwick, present Deputy Atty. Gen., and Harold Joffe, County and Pros. Atty. of Washakie County, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Appellant, John C. Nunez, was convicted in the District Court of Washakie County of second degree murder and sentenced to a penitentiary term of not less than 20 nor more than 25 years. He appeals to this court, claiming (1) the state failed to prove a punishable crime, and (2) the evidence in any event was insufficient to sustain a verdict of second degree murder.

It is not disputed in the case that defendant-Nunez and Kenneth McCullum were in a bar at Worland, Wyoming, on November 5, 1961; that they had some argument; and that the argument led to a fist fight behind the bar, during which McCullum received blows from Nunez, which resulted in McCullum's death.

Evidence of Homicide

Defendant's claim of failure on the part of the state to prove a punishable crime is predicated on the proposition that the evidence shows defendant acted in necessary self-defense. The evidence is in conflict as to which of the two men was the aggressor. We think it was sufficient to have entitled the jury to believe beyond a reasonable doubt that the aggressor was Nunez, and that he provoked the conflict. This alone would make it doubtful whether the right of self-defense could be invoked. See State v. Bristol, 53 Wyo. 304, 84 P.2d 757, 761; and State v. Flory, 40 Wyo. 184, 276 P. 458, 462.

However, there is a more compelling reason for holding the jury was warranted in finding Nunez guilty of unlawful homicide. It has been said several times in this jurisdiction that to justify a homicide on the ground of self-defense, it must appear the defendant was in great peril of death of serious bodily harm, or had reasonable ground for believing and did believe he was in such peril, and the killing was necessary to avert such peril, and no other reasonable means of avoiding it was open to him. Espy v. State, 54 Wyo. 291, 92 P.2d 549, 554; Durham v. State, 29 Wyo. 85, 210 P. 934, 938.

To justify killing in self-defense, defendant must not only have believed he was in danger, but the circumstances must have been such as to afford reasonable grounds for the belief. State v. Sorrentino, 31 Wyo. 129, 224 P. 420, 423, 34 A.L.R. 1477, rehearing denied 31 Wyo. 499, 228 P. 283, 34 A.L.R. 1487; Loy v. State, 26 Wyo. 381, 185 P. 796, 799.

We have carefully read all of Nunez's testimony, and we find that at no time did he claim he was in danger of death or serious bodily harm, or that he believed he was in such danger. Even if the jury believed his testimony as to how the fight started, which it was not obliged to do, and even if it accepted his version of the actual affray itself, there would be no basis for believing defendant was ever in danger of serious harm or that he ever believed himself to be in such danger. Certainly he was not in such danger when he inflicted the fatal injuries upon McCullum.

True it is defendant testified that he had started up steps when he was pulled down by McCullum; that McCullum kicked him and said he was going to kill him. However, Nunez got up and his own description of the fight would indicate he had the better of it from that point on. He tells of being mad and of hitting McCullum hard and knocking him back six or eight feet, of hitting him another time and knocking him down on his face or to his knees, after which he asked McCullum 'have you got enough?' and said 'let's quit.' Then he said he helped him up. He testified McCullum hit him again in the stomach and he hit him back.

According to Nunez, the men fought back and forth for what seemed like a long time. He tells of hitting McCullum at least one time in the mouth or somewhere in the face and another time in the eye. Another blow struck by Nunez knocked McCullum to his knees again, and Nunez claims to have left him in that position.

As to whether Nunez had any fear or reason for fear of serious harm, he was asked whether McCullum hit him in the face, and he replied, 'No, sir, I won't [sic] let him.' Of the two men, Nunez was at least as large or larger than his opponent. Nunez was 6 feet 2 inches tall, McCullum 5 feet 6 inches or 5 feet 7 inches. They may have weighed approximately the same. Nunez claimed he was 149 pounds when last weighed and McCullum was described as being 145 to 150 pounds heavy. Nunez himself described McCullum as being a 'little guy.'

One of the witnesses testified that prior to the fight between Nunez and McCullum, Nunez stood up in the bar and said he could take on any three in the house one at a time. Although Nunez denied such a statement, the jury was nevertheless entitled to believe it. If the jury did believe such testimony, it might easily conclude that Nunez was fully capable of taking care of himself during the fight; that he was not in great peril of death or serious bodily harm; and that he had no reason to believe he was.

More telling perhaps, on the question as to whether Nunez had been a person standing in fear of his life or serious injury, was the testimony of doctors and others who described the injuries inflicted upon McCullum. Blood was described as being all over the ground where he lay and up on the wall a distance of 5 feet 8 inches. His face and right eye were said to have been badly damaged. He was taken to the hospital and a doctor was called, but he was dead when the doctor arrived. Nunez had no serious injuries.

An autopsy was performed and the doctors testified there were severe trauma and contusions about McCullum's head, particularly around the right eye. They indicated there was evidence of severe blows or beating in that area. There was an abrasion at the base of the brain, and the cause of death was a severe hemorrhage at the base of the brain.

Apparently the trial court adequately instructed the jury on the law of self-defense, and no complaint is made with respect to the instructions. Therefore, the issue of self-defense having been fully and properly presented to the jury, we cannot say as matter of law the jury was wrong in resolving that issue against the defendant.

Degree of Homicide

The offense of second degree murder is defined in § 6-55, W.S.1957, as follows:

'Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty years, or during life.'

In order to sustain a conviction of second degree murder, it was incumbent on the state not only to prove beyond a reasonable doubt that Nunez killed McCullum, but also that he killed him both 'purposely' and 'maliciously.'

By definition the word 'purposely' means intentionally or deliberately. We need then to see whether the evidence is sufficient to show beyond reasonable doubt that Nunez intended to kill McCullum, and if so, whether he did it maliciously.

In State v. Parmely, 65 Wyo. 215, 199 P.2d 112, 118, where the accused was charged with assault and battery with intent to kill and murder, this court approved an earlier decision holding that the specific intent to kill must be proved as any other fact in a case. Doubt was expressed in the Parmely ca...