State v. Gevrez, Criminal 941

Decision Date12 May 1944
Docket NumberCriminal 941
PartiesSTATE OF ARIZONA, Appellee, v. CLIFFORD M. GEVREZ, Appellant
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and case remanded for new trial.

Mr. W E. Patterson and Mr. Edward S. Lyman, for Appellant.

Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. Palmer C. Byrne, County Attorney and Mr. Charles McDaniel, Deputy County Attorney, for Appellee.

OPINION

STANFORD, J.

Appellant was charged in the Superior Court of Yavapai County, Arizona, under information filed by the County Attorney, with the crime of murder in the first degree, the information alleging that:

" at Ashfork Precinct, County of Yavapai, State of Arizona, on or about the 21st day of March, 1943, Clifford M. Gevrez did then and there wilfully, wrongfully, unlawfully, feloniously premeditatedly, with malice aforethought and deliberately shoot, kill and murder one Gertrude Louise Gevrez, a human being."

April 4, 1934, the appellant married deceased; Gertrude Louise Swets, the marriage having occurred after a courtship of about two years. As issue of the marriage there were born two children, Charlotte, who was wight years old at the time of the killing in question, and Roger, who was then seven years of age. At the time of the killing by appellant of his wife, there was pending an interlocutory decree of divorce in the State of California.

When a youth the appellant was brought to Phoenix, Arizona, by his parents. Later they moved to Yuma, Arizona, where he attended high school and later worked for the Southern Railway Company as a bell boy. Thereafter he enlisted in the United States Army. He served in the army for approximately 12 years and at the time of the killing in question, he was an inspector of airplanes for the United States Army, and immediately prior to the killing was stationed at Tucson, Arizona. While at Tucson he received notice that he had been transferred to San Diego, California. On the evening of March 20, 1943, he left Tucson by bus, after buying a round trip ticket to Ashfork. He arrived in Ashfork about six thirty A.M. on March 21st and went to the Harvey House where he washed and ate breakfast. About eight o'clock he went to the home of Mrs. Gevrez to visit his children. Upon knocking at the door his wife responded and he advised her that he had called to see the children. He was allowed to enter the house where the children were getting up for the day and they were called into the living room. During his conversation with the children Mrs. Gevrez left the home and went into town. Appellant took some presents out of his satchel and gave them to his children. At the request of his little girl, Charlotte, he went across the street to look at her playhouse. While at the playhouse he asked his daughter if anyone had been visiting them lately and she replied that there had been no one except Rol (meaning Rol Benner), and she told him that Benner was in the town at that time. When appellant and his little daughter reached the house again he went to his satchel, which he had brought from Tucson, and took out his pistol, and started uptown to find the man Benner. On his way to town he met his wife returning in her automobile and rode back to the home with her. A dispute followed when appellant asked her, after they reached the house, what she had done with her friend, Benner. A very heated argument occurred in the kitchen at which place he fired four bullets into the body of Mrs. Gevrez and killed her instantly.

At the trial, by the verdict of the jury, the appellant was found guilty of murder in the first degree and the penalty fixed at life imprisonment, and the judgment of the court so followed and from such verdict and the judgment the appellant has appealed to this court.

The evidence in the case shows that one Rol Benner was the factor which broke up the appellant's home and alienated his wife; that Benner was a minister of the Gospel at Riverside while appellant and his wife lived there with their children. He was pastor of the Unitarian Church. They attended his church, and although he, the said Rol Benner, was married and had a child, the testimony submitted shows that he had to do with changing the love of Mrs. Gevrez from the time he first met her in Riverside in the year of 1938.

While deceased was located at Ashfork, having gone there about Thanksgiving in 1942, until the time of her killing on March 21, 1943, Benner had been in Ashfork and seen her either four or five times.

During a part of their residence at Riverside, the appellant was working at Santa Monica, and often when returning home would find Benner at his home. Later Benner was transferred to Berkeley where he became Dean of The Starr King School for the Ministry, and later Mrs. Gevrez went to Berkeley to take up duties as the librarian, she having previously qualified by attending a school at Riverside while they were living there. During these times appellant continued to carry out his inspection work for the United States Army at Santa Monica, California, and other places, and attempted to purchase a home near his work so he could have his family with him, but found some objection to that by Mrs. Gevrez. Later the Gevrezes moved to a rented home in Los Angeles, and the testimony showsthat the attitude of Mrs. Gevrez was cool toward this appellant. He found among her effects, a ring that had been given to her by Rol W. Benner with the initials of R.B. in the same.

The evidence furthers shows that in December, 1941, Mrs. Gevrez commenced divorce proceedings in California against the appellant, but they were later dismissed and a reconciliation was effected. In September, 1942, by mutual consent, the parties placed their children in a private school near Los Angeles. In December, 1942, the appellant commenced divorce proceedings in Los Angeles attempting to restrain his wife from taking their children to Arizona where she had obtained a position given her by reason of a course of study taken under the C.W.A. at Santa Monica, California, while the appellant was stationed at San Diego. The attempted restraint of the children was unsuccessful and on March 18, 1943, an interlocutory decree was entered in the last divorce proceedings and Mrs. Gevrez was given custody of the children with $80 a month for their support. The interlocutory decree mentioned gave the children jointly to the plaintiff and defendant, with personal custody in Mrs. Gevrez with the right of visitation by defendant.

Appellant submits fifteen assignments of error, but we feel it is unnecessary to take up each of the assignments, but it is our desire to pay our respects mainly to Assignment No. 4, which reads, as follows:

"The Court erred in appointing Dr. Seth F. H. Howes on its own motion to testify in the case against the appellant and in overruling appellant's objections to the Court's questions propounded to Dr. Howes; said appointment being made under Section 44-1702, Arizona Code Annotated 1939, which provides as follows:

"'Appointment of expert witnesses by court. -- Whenever on a prosecution by indictment or information the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one (1) or more disinterested qualified experts, not exceeding three (3) to examine the defendant. If the court does so, the clerk shall notify the county attorney and counsel for the defendant of such appointment and shall give the names and addresses of the experts so appointed. If the defendant is at large on bail, the court in its discretion may commit him to custody pending the examination of such experts. The appointment of experts by the court shall not preclude the state or defendant from calling expert witnesses to testify at the trial and in case the defendant is committed to custody by the court they shall be permitted to have free access to the defendant for purposes of examination or observation. The experts appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and defendant.'

"For the reason that Section 44-1702 is unconstitutional, violates Article 2, Section 24, of the State Constitution, and Section 4, Article 2, the due process clause of the State Constitution."

In addition to the plea of not guilty, the defendant entered a plea of not guilty by reason of insanity at the time of the commission of the offense, and while the foregoing assignment deals with the constitutionality of Section 44-1702, Arizona Code 1939, we are not going to say that said section is unconstitutional, but will dwell on that part of the assignment contending that the court erred in overruling objections to the court's questions propounded to Dr. Howes.

Dr Seth F. H. Howes was Superintendent of the Arizona State Hospital, and is a man whose qualifications as a physician and psychiatrist are unquestioned. He was called and examined by the court during the trial to determine the mental condition of the...

To continue reading

Request your trial
21 cases
  • People v. Lucero
    • United States
    • California Supreme Court
    • 28 Marzo 1988
    ...the victim to sit at the prosecution table throughout the trial over defendant's objection. We note two other cases: State v. Gevrez (1944) 61 Ariz. 296, 148 P.2d 829, 832- in which the mother of the deceased victim sat within three to four feet of the jury, repeatedly interrupted the trial......
  • Gaston v. Hunter
    • United States
    • Arizona Court of Appeals
    • 29 Agosto 1978
    ...opinion: "In the past this court has stated that an expert may not base his opinion on facts not in evidence. See State v. Gevrez, 61 Ariz. 296, 148 P.2d 829 (1944). 'The purpose of this rule is to prevent the expert from basing his testimony on assumptions which are unknown to the jury and......
  • State v. Steelman
    • United States
    • Arizona Supreme Court
    • 13 Septiembre 1978
    ...which was based on facts which had not been presented in evidence. State v. Drury, 110 Ariz. 447, 520 P.2d 495 (1974); State v. Gevrez, 61 Ariz. 296, 148 P.2d 829 (1944). Thus, under the law at the time of the trial it was error to permit the Doctors Austin and Cavanaugh to testify as to an......
  • State v. Drury, 2599
    • United States
    • Arizona Supreme Court
    • 25 Marzo 1974
    ...evidence. * * *' Gillespie Land and Irrigation Co. v. Gonzalez, 93 Ariz. 152, 159, 379 P.2d 135, 141 (1963). See also State v. Gevrez, 61 Ariz. 296, 148 P.2d 829 (1944). In the instant case, however, Exhibit G was in evidence and the doctor could base his opinion upon the evidence already a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT