State v. Chavez
| Decision Date | 10 October 1929 |
| Docket Number | 6507. |
| Citation | 281 P. 352,85 Mont. 544 |
| Parties | STATE v. CHAVEZ. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Enrique Chavez was convicted of murder in the second degree, and he appeals. Affirmed.
M. J Doepker and W. B. Frame, both of Butte, for appellant.
L. A Foot, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for the State.
The defendant, Enrique Chavez, was convicted of the crime of murder in the second degree and sentenced to a term in the state prison. He appeals from the judgment and from an order denying him a new trial. The sole contention is that the judgment is contrary to law, in that the evidence adduced warrants a verdict of guilty of no greater crime than manslaughter.
In support of this contention defendant relies solely upon State v. Kuum, 55 Mont. 436, 178 P. 288, wherein a judgment of conviction of murder in the second degree was reversed. In that case the evidence clearly disclosed that the fatal shot was accidentally fired during a friendly scuffle between the defendant and the deceased.
In the case at bar the deceased met his death by reason of being struck either by one of three bullets intentionally fired by the defendant into a small lighted room in which he knew three or four men were assembled, in reckless disregard of the safety of those men, or the deceased was struck by a bullet fired directly at him or at another with whom he was locked in close embrace at the time. No one, other than the defendant, was in a position to say which of these alternatives conformed to the truth.
The shooting occurred on the night of January 21, 1929, in a three-roomed house on Hopkins street in Butte, rented by defendant and one Antone Ramos, and where the deceased, Juan Chavez, his cousin, had stayed with, and been kept by, the defendant for some days. Defendant had an injured foot, but got around on crutches.
Shortly after 10 o'clock on the night of the tragedy defendant appeared at a house next door to his residence and told the landlady, Mrs. Smith, and a roomer, Pedro Cruz, that Juan had been shot by some unknown person; his story to them, repeated later to police officers, was that he had been sleeping in the bedroom adjoining the kitchen when he was awakened by a shot, and, going into the kitchen, he found Juan lying on the floor. Defendant requested Cruz to call a doctor; instead Cruz called the police, and then followed defendant to the scene of the shooting. Defendant handed Cruz a .38 caliber automatic pistol, and requested him to take it away; he overcame Cruz's reluctance by assuring him that he (the defendant) had "done nothing" with the pistol. Cruz took it to Mrs. Smith, who hid it. The defendant and Ramos are Mexicans, as was also the deceased.
The officers, when they arrived, found Juan Chavez, with a bullet hole in his left temple, lying with his head in a pool of blood about a foot from the door communicating with the bedroom, his body extending in a northeasterly direction across the kitchen floor. They found three discharged shells on the floor of the bedroom, two cartridges in a stove in the third room of the house, and, in the pocket of a coat hung in the bedroom closet, the empty clip of an automatic. The pistol could not be found, and both Mrs. Smith and Cruz denied knowledge of it; later the officers returned and told Mrs. Smith that the defendant had confessed to shooting his cousin, and she thereupon produced the weapon; it had a cartridge in the barrel and was minus the clip; the clip, the empty shells, and the cartridges found in defendant's home fitted the weapon. Juan Chavez was alive, but unconscious, when the officers arrived; he was taken to a hospital, but died the next morning without regaining consciousness. Asked who was present at the time of the shooting, defendant told the officers that there had been three or four Mexicans in the kitchen, but he did not know who they were.
The defendant was taken to the police station, where he repeated the story of having been awakened by a shot to police officers and to the county attorney. Finally he admitted to the county attorney that he had shot Juan, had taken the clip from the pistol, and put it where it was found, and then given the weapon to Cruz. Asked to detail the circumstances, his story, as told by the county attorney on the stand, was that he was asleep when his cousin came in with three or four fellows; that they were in the kitchen creating a disturbance, seemed mad at each other, and he called to them to get out, but they paid no attention to him, and then he heard a noise, something like a coffee pot being thrown against the stove, and he took his pistol from under his pillow, and shot "in different directions in the room," and, while he was firing, his cousin "apparently stuck his head in at the door and got hit." The county attorney closed his direct testimony with the statement: "After questioning the defendant further, I said 'You shot your cousin because you were angry because he brought some other person into the house that you didn't want there' and his answer was 'yes."'
The record discloses that the defendant had but an imperfect knowledge of the English language, but the county attorney and police officers testified that he seemed to understand all questions put to him and to answer intelligently. At the trial he testified through an interpreter.
The defendant's story, as related on his direct examination, is that Juan brought three or four fellows to the house and they were making "a lot of noise" in the kitchen; that he called to them to get out, but they did not go; that, after he had ordered them out three times, he heard a noise that sounded like some one being choked, and recognized the voice as that of his cousin, whereupon he took his gun out and fired three times "toward the door of the kitchen" in order to scare the men away, and then heard somebody fall. He went into the kitchen and found that it was his cousin; the others had gone out, but two of them were still in the woodshed to the rear of the kitchen. He then took the clip from the gun and put it in the coat in the closet and went to the Smith house. He explained his original story to the police by saying that he was afraid to tell them what he had done for fear they would beat him up, but this statement does not explain his act in telling the same story to friends before the police arrived, and, on cross-examination, he admitted to the county attorney that he was not afraid of being "beaten up" when he told his original story to that officer.
On cross-examination he went further than on direct, stating that, just prior to firing the shots, Juan called for help, and it was this call that he recognized as Juan's voice rather than the choking noise.
Two Mexicans, claiming to have been two...
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