State v. Arellano

• Decision Date: 19 February 1951
• Docket Number: No. 3604,3604
• Citation: 227 P.2d 963,68 Nev. 134
• Parties: STATE v. ARELLANO.
• Court: Nevada Supreme Court

Page 963

227 P.2d 963

68 Nev. 134

STATE v. ARELLANO.

No. 3604.

Supreme Court of Nevada.

Feb. 19, 1951.

Rehearing Denied July 2, 1951.

Peter Echeverria and C. Clifton Young, Reno, for appellant.

Alan Bible, Atty. Gen., R. L. McDonald, Deputy Atty. Gen., Harold O. Taber, Dist. Atty., and Grant L. Bowen, Deputy Dist. Atty., Reno, for respondent.

EATHER, Justice.

Appellant was convicted of the crime of murder of the first degree, and the penalty of death was imposed. An information was filed on September 15, 1949, in the Second Judicial District Court, in and for the County of Washoe, charging the appellant with the crime of murder, and he was duly and regularly scheduled to be arraigned on September 15, 1949, at which time C. Benson Tapscott was appointed as counsel to represent him, and on said September 15, 1949, the arraignment was continued to October 7, 1949. Thereafter, to-wit, on October 7, 1949, the appellant duly and regularly entered his plea of not guilty and the trial date was fixed for November 30, 1949. The trial commenced on that day and ended on December 2, 1949, when the jury returned its verdict of guilty of murder of the first degree and fixed the punishment at death. The appellant did not testify and presented no evidence in his behalf. Thereafter and pursuant to the verdict of the jury, sentence of death was imposed by the Second Judicial District Court on December 7, 1949.

No motion for a new trial was made, but on February 15, 1950, the appellant petitioned the court for the appointment of defense counsel to investigate and consider the rights of appellant in an appeal from the judgment rendered therein. Pursuant to the petition the court appointed Peter Echeverria, Esq. to act on behalf of the appellant and to take such steps as he deemed necessary in his behalf. On February 20, 1950, a notice of appeal from the said judgment and the whole thereof was duly filed with the clerk of the Second Judicial District Court. The grounds urged on this appeal for a reversal of the judgment may be grouped under seven heads, namely: (1) Is the indigent appellant entitled to the presentation of a reasonably competent defense under 'due process' requirements? (2) If the defendant or appellant is so entitled, did he is this case receive a type of trial that is guaranteed by these requirements of 'due process?' (3) Was the defense so incompetently conducted as to viclate the requirements of 'due process' and require the granting of a new trial? (4) Did the court commit prejudicial error in instructing the jury that voluntary intoxication is no excuse to a crime committed under its influence, even when the intoxication is so extreme as to make a person unconscious of what he is doing or to create temporary insanity, when considered in connection with the further instruction given, hereinafter discussed? (5) Did the court commit reversible error in allowing to be introduced in evidence a colored picture of the deceased? (6) Did the court commit reversible error in allowing, over objection of the defendant's counsel, testimony of admissions of the defendant? (7) Did the state sufficiently discharge the burden of proof incumbent in this type of case?

At the trial of the action, the following witnesses appeared for and on behalf of the State of Nevada, and a summary of their testimony is as follows:

George F. Crook, who resides at 1228 'A' Street in Sparks, Nevada, testified that he was a druggist by profession and that he had been employed by Hilps Drug Store in Sparks, Nevada, prior to the night of August 10, 1949, and that he was so employed on the night of August 10, 1949, the evening when, as it is alleged in the information, Esperanze Rodriquez was shot and killed by Gregorio Arellano. According to his testimony, the deceased and Jean Martin, both employees at the soda fountain, left the Drug Store at about 10:15 P. M., and that the three of them started walking west on 'B' Street to their respective homes in the western section of Sparks. Mr. Crook was walking on the outside next the sidewalk, the deceased was walking next to the buildings on 'B' Street, and Mrs. Jean Martin was walking between these two people. As they approached the entrance to the Crystal Bar, which is at the corner of 10th Street, and 'B' Street and west of Hilps Drug Store, Mr. Crook testified that he saw Arellano rapidly walk up to the corner entrance of the Crystal Bar and that as they passed the corner entrance by several feet, he heard two shots fired in rapid succession; a third shot followed almost immediately. After the first two shots were fired, Mr. Crook turned to the direction from which they were apparently coming, that is, to the right and rear, and saw Arellano fire a third shot. After that, Mr. Crook then saw the defendant turn the gun on himself and fall to the sidewalk. Esperanze Rodriquez immediately fell to the sidewalk and died almost instantly. He positively identified Gregorio Arellano as the man who shot Esperanze Rodriquez on the night of August 10, 1949.

Mrs. Jean Martin, a co-worker employed at Hilps Drug Store, and who resides at 328-11th Street, Sparks, Nevada, testified to practically the same circumstances as Mr. Crook, but stated that as they were walking past the Crystal Bar, she saw Gregorio Arellano coming out and heard the deceased speak to Arellano. She further testified that she was very frightened, that she heard only two shots and that she ran to the Block S. Fountain, which is adjacent to the Crystal Bar.

Dick Avansino, age 17, and a student at the Sparks High School, gave an eye-witness account of the shooting, and stated that while he and his friend Lee Ceccarelli, were standing on the sidewalk in front of the Block S. Fountain, he heard three shots, that he saw Gregorio Arellano shoot the deceased three times, that she fell to the sidewalk, and that defendant then shot himself.

Lee Ceccarelli, also a student at the Sparks High School, gave an eye-witness account of the facts and circumstances surrounding the shooting and death of Esperanze Rodriquez, and his testimony was practically the same as the testimony of Dick Avansino.

Gino Questa, who resides at 1561 'A' Street in Sparks, Nevada and is an operator of the Block S. Fountain, testified that he was sitting in the back seat of a car owned by Jim Jensen, which car was parked in front of the Block S. Fountain; that he saw George Crook, Jean Martin and the deceased walking west on 'B' Street, and that as they passed the Crystal Bar, he saw Gregorio Arellano fire three shots into the deceased and then saw him fire a fourth shot into himself.

Jim Jensen, who resides at 337 Pyramid Way, Sparks, Nevada, and is an employee of the Nevada Auto Supply Company in Reno, testified that he had parked his car in front of the Block S. Fountain in Sparks, and that he was sitting in the front seat along with Bill Bailey, when he heard a shot and that he then saw the defendant fire two shots into the body of Esperanze Rodriquez as she fell to the sidewalk. He then saw the defendant shoot himself. Furthermore, he positively identified the defendant as the man who did the shooting, and testified that he had known the defendant for sometime prior to the shooting because he had been at one time employed as a bartender at the Owl Bar where the defendant on occasion had cashed his pay checks. Jim Jensen also testified that he saw the defendant and a companion go into the Crystal Bar shortly before the shooting; that he observed his condition and that he saw that he was not staggering or that he was not acting in an unusual manner.

Bill Bailey, who resides at 242 Caliente Street, Reno, Nevada, and an employee of the Western Cigar Company for approximately three years, testified to the facts and circumstances surrounding the shooting and his testimony was practically the same as that of Jim Jensen and Gino Questa, with the exception that he did not see the defendant go into the Crystal Bar shortly before the shooting.

Dr. H. Earl Belknap, M.D., 1129 'D' Street, Sparks, Nevada, testified that he had known Esperanze Rodriquez practically all of her life and that on the night of August 10, 1949, while approximately a block away, he heard four or five shots; that he hurried to the Crystal Bar where he saw a crowd gathering; that upon his arrival at the scene of the homicide, he ascertained without any trouble that Esperanze Rodriquez was dead.

Dr. Rodney E. Wyman, 729 North Virginia Street, Reno, Nevada, testified that when he examined the defendant at the Washoe Medical Center on the night of August 10, 1949, the defendant was suffering from a gunshot wound; that he did not observe any signs of intoxication about the defendant and that he performed surgery on Gregorio Arellano.

George Rogers, while on duty as an officer in the Sparks Police Department, testified that a call was received at 10:12 P.M., on the night of August 10, 1949, and that he was requested to go to the Crystal Bar, corner of 10th and 'B' Streets, where a shooting had taken place. He positively identified the death weapon which was introduced in evidence, as having been picked up by him near Arellano, and that there were four fired cartridges and two unfired cartridges in the revolver.

Officer John Macy, also of the Sparks Police Department, testified to being called to the Crystal Bar at the corner of 10th and 'B' Streets, in Sparks, and identified the gun and shells which were introduced in evidence.

Dr. Lawrence Parsons, autopsy surgeon, testified that he herformed an autopsy upon the body of Esperanze Rodriquez; that his examination disclosed the finding of three entrance wounds in the right lower lumbar region of the back of the deceased, and gave as his opinion that death was caused by gunshot wounds. He further identified a lead bullet which he removed from the girl's body as being one of the bullets which could have resulted in the girl's death.

Mrs. Antonio...