State v. Acosta
| Decision Date | 12 January 1926 |
| Docket Number | 2706. [a1] |
| Citation | 242 P. 316,49 Nev. 184 |
| Parties | STATE v. ACOSTA. |
| Court | Nevada Supreme Court |
Appeal from District Court, Elko County; J. M. McNamara, Judge.
Gaudalupe Acosta was convicted of murder in the first degree, and he appeals. Affirmed.
E. P Carville, of Elko, for appellant.
M. A Diskin, Atty. Gen., and W. T. Mathews, Dist. Atty., of Elko for the State.
The defendant was convicted of murder in the first degree and appeals from a judgment inflicting the death penalty.
The first point urged is that the defendant could not, under the evidence, be legally convicted of a crime greater than manslaughter, even though the jury might have concluded that he did not act in self-defense. This contention is based upon the rule stated in 13 R. C. L. p. 872, reading:
On the evening of March 2, 1925, about 9 o'clock, the defendant, who had been employed on the Western Pacific Railroad, arrived in Elko and went to the West Hotel, where he engaged a room, and thereafter went to a café to get something to eat. After leaving the café, he was seen loitering on the sidewalk by the officers Capriola and Lewis, in a drunken condition, and indulging in profanity, which is an offense under our statute. Officer Capriola spoke to and told defendant to go to bed. The officers continued up the street and were overtaken by the defendant, who walked between them for a short distance, still under the influence of liquor and indulging in profanity. Officer Capriola again ordered the defendant to go to his room and go to bed. The defendant them replied, "To hell with you fellows." Officer Lewis thereupon spoke for the first time, saying, "Well, if you don't want to go to bed, we will put you to bed," and took the defendant by the arm and started to the county jail with him. The defendant was first warned about midway the block in which is the post office, on the main street of Elko, and the arrest took place at the Henderson Bank corner, one of the most prominent points in the city. Officer Lewis, in taking the defendant toward the jail, crossed the street diagonally, reaching the opposite side at about the intersection of Fifth street, and then proceeded up the center of Fifth street for a distance, angling toward the east side of the street as he approached the next street, on which is the jail. It was near the intersection of the next street at which Officer Lewis was shot by the defendant; three bullets having penetrated his body. The theory of the defense is that defendant did not know that Lewis was an officer, and that he was under arrest, and that he thought Lewis was taking him to a dark place to rob him, and that, when they reached the point where the shooting took place, Lewis assaulted him, and that he shot in selfdefense.
While Officer Capriola did not testify that either of the officers told the defendant, in his presence, that they were officers, or that he was under arrest, he testified that Lewis wore an officer's star, which could be easily seen, of which there is ample evidence; that he had seen the defendant in Elko numerous times; and that on at least one occasion the defendant was present when he had ordered several Mexicans to mend their ways. There is also in evidence a statement of the defendant, made the morning after the shooting, in which he said that Lewis told him he was a policeman.
We would be amply justified in saying that, though the defendant denied on the stand knowing that Lewis was an officer or making the statement in evidence, and testified that he was assaulted without provocation, and, as he thought, with the view of robbery, the jury having heard all of the evidence, and there being ample evidence to support the verdict, we would simply let the matter rest upon such verdict without comment. Since, however, this is a capital case, we may say we cannot see how the jury could have reached any other conclusion than that the defendant knew that Lewis was an officer. He was arrested about 10 o'clock. Prior to his arrest he was ordered twice to go to his room by one of the two officers. This alone was enough to indicate to his mind that they were officers, or at least not set upon robbery, for, if they had designed robbery, they would have given no such orders. Could he reasonably have inferred that Lewis, who took him by the arm and marched him across the street at 10 o'clock at night, at the main street of the town, had conceived the idea of robbery after leaving Capriola? If the defendant had such an idea, he could have appealed to the witness McCulloch, who crossed Fifth street within a few feet of the defendant and Lewis; but, instead of doing so, according to McCulloch, the defendant was "talking rough." If he had thought he was in the hands of a highwayman, the most natural thing for the defendant to have done would be to appeal to McCulloch. He did not do this. We are satisfied that the jury reached the right conclusion in rejecting the contention of the defendant.
It is next contended that the court erred in giving instruction No. 19, which reads:
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...Similarly it was the province of the jury to determine whether Kuk was animated by malice, express or implied. NRS 200.020; State v. Acosta, 49 Nev. 184, 242 P. 316. Nor may we rule, as a matter of law, that Kuk's voluntary intoxication so beclouded his mind as to require a reduction in the......
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