State v. Gabaldon., 4464.

• Decision Date: 21 November 1939
• Docket Number: No. 4464.,4464.
• Citation: 96 P.2d 293,43 N.M. 525
• Parties: STATEv.GABALDON.
• Court: New Mexico Supreme Court

43 N.M. 525

96 P.2d 293

STATE

v.GABALDON.

No. 4464.

Supreme Court of New Mexico.

Nov. 21, 1939.

Appeal from District Court, Valencia County; David Chavez, Jr., Judge.

Leopoldo Gabaldon was convicted of manslaughter, and he appeals.

Affirmed.

Evidence supported finding that deceased was killed by defendant, a night watchman, who was enlisted by town marshal to aid in arrest of deceased and deceased's brother, so as to support conviction of manslaughter.

Fred Nicholas, of Albuquerque, for appellant.

Filo M. Sedillo, Atty. Gen., and A. M. Fernandez, Asst. Atty. Gen., for appellee.

BRICE, Justice.

The appellant, with Vidal Baca, was tried for the murder of Jose Gurule. Baca was acquitted and appellant convicted of the crime of manslaughter and sentenced to serve a term in the State penitentiary.

It is contended that the evidence does not legally establish that deceased was killed by appellant. This assignment calls for a review of the testimony.

[1] We have held in numerous cases, both civil and criminal, that this court will review the testimony only to determine whether a finding, verdict, judgment, or decree is supported by substantial evidence; and if a search of the record discloses such support, we will not disturb the result.

The following facts are practically undisputed:

The deceased Jose Gurule and his brother Herminio Gurule, attended a dance at a house in or near the town of Belen, in Valencia County, New Mexico, on the night of the 11th of June, 1938. They left the dance about 1:30 o'clock in the morning of the 12th of June, and went upon the streets of the town of Belen. They had both been drinking, but were not intoxicated. They were seen by Vidal Baca, the town marshal, who ordered them to go home. This occurred a second time, resulting in an altercation. Baca fired his pistol in the air twice, left in his car and enlisted the appellant Gabaldon, a night watchman, Augustin Sedillo, and Juan Garcia, each a deputy sheriff, to aid in the arrest of the Gurule brothers, for whom they began a search. Sedillo and Garcia left the car first, to search behind a store, and Baca and the appellant drove about a hundred yards further, where they found the deceased and his brother sitting on the sidewalk. They got out of the automobile, and Baca, with a gun in his hand, notified them that they were under arrest. A fight ensued in which Baca struck Herminio on the head with his gun several times, while the appellant attempted to hold the deceased, who escaped and ran across the street. Baca had some difficulty in handling Herminio at first, and shot his gun in the air to attract the other officers. Following this gun shot, two other shots were fired south from the scene of the affray; at what distance the witnesses were unable to state. After Herminio was beaten until he was unconscious, the appellant and Baca put him in the car and started with him to the city jail. In the meantime, Sedillo and Garcia, having heard the shots, came from the north and met appellant and Baca, and the four took Herminio to the jail, which is in the city hall. Appellant left immediately but soon returned in his automobile and stated to Sedillo and Garcia that he had found the deceased in an alley, wounded. The two deputies went with appellant to the side of the house of Mrs. Adelaida Baca, where they found the deceased, suffering from a gun shot wound and paralyzed from the waist down. The next day there was found in Mrs. Baca's back yard, about 45 feet from where the deceased's body was lying, a steel jacketed 45-caliber bullet, and, some 20 feet northwest of the body of the deceased, an empty 45-caliber shell. The wound was made by the bullet found, or one like it.

The clothing and flesh around the wound on deceased's body was powder burned, indicating that his slayer was within a very few feet of him when he was shot in the back. The bullet struck and shattered the fifth dorsal vertebra, lacerated the spinal cord, ranged upward and came out in the front of his neck.

The distance from the place of the affray to the corner of Mrs. Baca's house is 140 feet, and from said corner down an alley running at a right angle with the street, to the body of the deceased, is about 40 feet; a total of 180 feet.

The deceased stated that Baca shot him, but later when his mind apparently had cleared, he stated he did not know who shot him. Herminio could give no information because he had been beaten into insensibility by Baca.

The deceased was not shot by either Garcia or Sedillo, for they were still north of the place of the affray after the shots had been fired, and the shooting occurred in an alley south of that place.

There is no evidence to indicate any other person was near the place, or that another had the opportunity to shoot the deceased, or had cause to do so. We are satisfied that either the appellant or Baca shot him. The interests of the respective defendants, therefore, sharply conflicted.

The appellant told Sedillo and Garcia at the time he took them to the deceased in the alley, that he believed Baca had shot him. Later on the same day he signed a statement to the effect that Baca shot in the air during the scuffle and the deceased got loose from him and ran past the front of the car and, “I grabbed Herminio Gurule. Herminio and I then fell on the ground. I then saw Jose Gurule run across the street. Vidal Baca went towards the same direction after Jose Gurule and then I heard two shots. Herminio and I were scuffling on the ground.” The only reasonable inference that could be drawn from this statement, if true, is that Baca shot the deceased.

At the trial of the case the defendants were not separately defended. All witnesses introduced were in the behalf of both. The appellant repudiated his statements that pointed to Baca as the one who killed the deceased. He stated:

“Vidal Baca, the marshal, fired up in the air, then Jose Gurule ran towards the south and turned behind the car. I jumped and grabbed Herminio, took him away from Vidal. Then Vidal Baca directed himself to see where the other boy had run away. He crossed the highway.

“Q. Who crossed the highway? A. Jose Gurule, then Vidal Baca he was down on the ground with Herminio. I heard two more shots, then Vidal Baca helped me pick him up.

“Q. Then you told me (the district attorney) and in that statement you state, that you saw Vidal Baca follow Jose Gurule across the street, didn't you? A. Not that much.

“Q. Just how much did you say? A. Maybe one or two feet from me, that's all.

“.Q. You also told me in my office, Mr. Galbadon, that Vidal Baca was the man who shot Jose Gurule, didn't you? A. No, Sir.

“Q. What did you tell me? A. I didn't know who shot him.” Appellant's statement regarding Baca was read to him and the following occurred:

“Q. Is that what happened? A. Not all that.

“Q. You signed this statement, didn't you? A. Yes.

“Q. Well, what happened, tell us, since you have changed your story? A. Vidal Baca didn't run after him, only just got away about two feet from me because at the same time, he helped me pick Herminio up from the ground.

“Q. And Vidal Baca only shot once into the air, is that right? A. Once in the air that I saw.

“Q. He wasn't the one who took the other two shots? A. I don't know, he could have been and he could have not been.”

The defendant Baca had testified regarding his attempt to arrest Herminio and of striking him in the head with his gun, from the effect of which Herminio was dazed. Then he stated:

“At that time I heard two shots more, and it seemed to me that those shots were fired south of my car. At that time I saw Leopoldo; he was coming in this direction to aid me and I told him to help me along with that fellow. Then he grabbed that fellow by the arm and I took him by the other arm and I told Leopoldo where the other fellow went and he says, ‘Pretty strong and got loose from me and just left.’

“Q. Now, you say that you shot again into the air right then, is that right? A. I did fire a shot in the air to signal the other officers.

“Q. Where was Leopoldo Gabaldon at this time? A. At that moment, I did not see him.

“Q. Was Jose Gurule standing near by? A. I did not see him.

“Q. Could you tell us whether or not he was standing by? A. I don't know, Leopoldo was wrestling with him near my car.

“Q. In your statement you stated you saw Jose Gurule cross the highway, is that right? A. I saw Jose Gurule crossing the highway.

“Q. Where was Leopoldo Gabaldon at that time? A. At that time Leopoldo came to help me to catch Herminio.

“Q. Where did he arrive from? A. Right next against my car.

“Q. Did he come out from behind the car or from in front of the car? A. He came out from in front of the car, near the fender of the car.

“Q. But you couldn't tell where he was coming from, is that right? A. He was coming from the direction of the back, south of my car.

“Q. And when you saw Leopoldo coming towards where you and Herminio were, you had already heard these two shots that you just testified to a while ago? A. Following my shot, I heard the two shots.

“Q. These two shots that you heard, did they seem as if they came from the direction, what direction, for instance? A. It sounded like from the south.”

There is an innuendo in the statement of each of the defendants that the other may, or could have, shot the deceased without his knowledge; but each was careful to protect the other by testimony which, if literally true, would establish that neither of them shot him; because they were never separated from each other very far, and the slayer was about 180 feet from the place of the attempted arrest when that shot was fired.

The jury must have concluded that one of the two defendants killed the deceased and that this fact was known to both. We think the evidence justifies such conclusion. With this start towards a solution of the question, they determined that appellant was the guilty party from the following facts and...