State v. Gonzales

Decision Date25 March 1968
Docket NumberNo. 10054,10054
Citation92 Idaho 152,438 P.2d 897
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Ramon GONZALES, Jr., alias Raymond Gonzales, Defendant-Appellant
CourtIdaho Supreme Court

Richard R. Black, Pocatello, for appellant.

Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Thomas E. Moss, Pros. Atty., Blackfoot, for appellee.

TAYLOR, Justice.

Defendant (appellant) Ramon Gonzales, Jr., and some friends were visiting and drinking at the Silver Spur bar in Blackfoot, Idaho, late on the evening of November 19, 1966. Likewise, at the same time decedent Adonis 'Speedy' Gonzales (not related to defendant) and his companions constituted another group in the same bar. All participants-except the state's principal witness John Garcia, a teetotaler-imbibed substantial quantities of alcoholic beverages. An altercation arose between Garcia and the decedent. This was resolved, however, without physical combat. Thereafter, Garcia, Robert Perez, and defendant left the bar. They were followed outside by decedent, where another argument ensued. Garcia and defendant each threw a bottle at the decedent. Defendant's missile struck the head of decedent, and decedent returned into the bar. Fearful that decedent would bring out his companions to continue the fracas, Perez entered and waited in a friend's car. Defendant and Garcia ran to defendant's car, a red-and-white Buick, parked nearby. In this car they drove to defendant's apartment where, according to Garcia, defendant obtained a .22 caliber rifle equipped with telescopic sight. They then returned to the automobile and drove back to the Silver Spur bar, defendant driving and Garcia occupying the right-hand front seat. Near the bar they stopped at a traffic light from which point they could see a group congregated outside the bar. About the time the light turned green, defendant stated to Garcia, 'I am going to shoot,' and then said, either, 'I am going to kill him,' or 'but I am not going to kill him.' Defendant then drove the car slowly forward, picked up the rifle from the floor of the car, stuck it through the open left-hand front window, fired one shot, and drove off at a high rate of speed.

The foregoing relation of events occurring from the time Garcia and defendant left the bar in defendant's car, up to the time of the shooting, is based upon the testimony of Garcia, the only witness thereto.

The bullet struck decedent, who fell and expired almost immediately. The medical testimony established that the bullet passed through decedent from right to left, piercing the right arm, lungs and heart, and came to rest beneath the skin on the left side in the anterior axillary fold.

Numerous witnesses in the area heard the shot fired, saw the shot fired from a gun protruding from the car window, recognized the car, saw the victim fall immediately after the shot, and saw the car drive off rapidly. These witnesses, however, did not identify the defendant as the one who fired the rifle. Garcia was the only witness who did so.

After the shooting defendant and Garcia drove to the home of defendant's mother in Aberdeen, Idaho. The .22 rifle and scope were left in the mother's house and another larger caliber rifle was placed in the car. The only evidence of what occurred at the mother's house came from the testimony of Garcia. Neither defendant nor his mother testified.

Defendant and Garcia left the mother's home and, again traveling in defendant's car, stopped at American Falls and Pocatello before returning to Blackfoot. Garcia testified that during this trip defendant said, 'The poor guy, if I shot him right, I hope he doesn't die.'

On November 20th, in the course of police investigation, a police officer accosted defendant at a drive-in service area in Blackfoot and asked if defendant owned a .22 rifle. Defendant denied such ownership and the officer left without further questioning. On November 21st a complaint was filed charging defendant with disturbing the peace. Defendant was arrested upon a warrant issued thereon. The arrest occurred in defendant's apartment in Blackfoot. The arresting officer testified that after warning defendant of his 'Miranda' rights, he asked defendant for permission to look around the apartment. Permission was given and in the course of the search a spent .22 caliber cartridge case was discovered and seized by the officer. On his arraignment in the probate court on the charge of disturbing the peace, defendant was again advised of his rights and warned that he was under suspicion for the shooting of decedent. Defendant indicated that he desired the assistance of counsel. However, no counsel was then provided.

Immediately after the arraignment and during the course of defendant's booking at the sheriff's office, at which time only the defendant and officer Adams were present, the defendant allegedly asked the officer, 'How is the fellow I shot, is he ded (sic) or what?' When this statement was offered through the officer as a witness, defense counsel objected and offered to show, through the testimony of defendant outside the hearing of the jury, that the statement attributed to him was not voluntary but was elicited in the course of custodial interrogation. The trial court declined to hear the offered proof and permitted the officer to testify to the statement, and also that he was not interrogating defendant at the time and that the statement was made by defendant spontaneously and not in response to any statement made, or question put, to him. After the arrest officers Wood of Blackfoot and Vargeson of the Aberdeen police went to the home of defendant's mother in Aberdeen. Wood testified that he had a search warrant, but did not present it to Mrs. Gonzales. Rather, officer Vargeson, who had known the Gonzales family for a number of years, asked her permission to look for a rifle which defendant may have left in the house. Mrs. Gonzales consented and assisted officer Vargeson in searching for the rifle. Officer Wood remained outside. The .22 rifle and scope were found in the house and seized.

Maurice J. Stack, Jr., a ballistics expert from the F.B.I., testified that he had examined the .22 rifle (State's Exh. L., found in the home of Mrs. Gonzales), the bullet (State's Exh. H., taken from the body of decedent), and the empty .22 cartridge case (State's Exh. N., found in defendant's apartment). The witness identified the bullet as a .22 Long Rifle Remington-Peters bullet, and the cartridge case as the type into which such a bullet normally would be loaded; that the bullet could have been fired from the .22 rifle (Exh. L.), but he could not exclude the possibility that it may have been fired from some other gun; the cartridge case (Exh. N.) had definitely been fired in the rifle (Exh. L.) to the exclusion of any other gun.

The jury found defendant guilty of murder in the first degree and a sentence of life imprisonment was imposed by the judgment of the court, from which defendant prosecuted this appeal.

The refusal of the court to give to the jury defendant's requested instruction No. 17 1 is assigned as error. Defendant contends that the witness Garcia was an accomplice in the killing of 'Speedy' Gonzales and that the jury should have been instructed as to the corroboration necessary to sustain a conviction based upon the testimony of an accomplice.

"An 'accomplice' is a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission, or, not being present, has advised or encouraged its commission." State v. Gilbert, 65 Idaho 210, at 215, 142 P.2d 584, at 585 (1943).

See State v. Grimmett, 33 Idaho 203, 193 P. 380 (1920); State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933).

"An 'accomplice' is a responsible person whose wilful participation in the commission of a crime, when that fact is established by competent evidence in a court of requisite jurisdiction, renders him liable to a conviction of the offense." State v. Grimmett, 33 Idaho 203, at 212, 193 P. 380, at 382 (1920).

'Mere presence at, acquiescence in, or silent consent to the commission of an offense is not, in the absence of a duty to act, legally sufficient, however reprehensible it may be, to constitute one a principal, an accessory, an aider and abettor, or an accomplice. An accomplice is one who is joined or united with another; one of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it.' State v. Altwatter, 29 Idaho 107, at 111, 157 P. 256, at 257 (1916).

'* * * a mere mental state of uncommunicated consent or acquiescence on the part of a bystander, where a crime is being instigated, is not sufficient to make him an accomplice in its commission. Some aiding, abetting or actual encouragement on his part is essential.' State v. Grant, 26 Idaho 189, at 197, 140 P. 959, at 962 (1914).

An accomplice is one of several 'principals' to a criminal undertaking as defined by statute. I.C. § 18-204. 2

Our statute, I.C. § 19-2117 requires that the testimony of an accomplice be corroborated in order to sustain conviction based thereon.

The evidence tends to indicate that Garcia had had an altercation with decedent prior to the shooting; that he knew defendant took a rifle from his apartment and placed it in the automobile; that he accompanied defendant in the automobile back to the scene of the shooting; and that he was aware defendant was carrying the rifle for an unlawful purpose. While it cannot be said as a matter of law that Garcia was an accomplice in the homicide, the jury may have found that by his conduct he aided, abetted or encouraged its commission. Thus, there was presented an issue of fact as to whether Garcia was an accomplice. It then became the duty of the court to instruct the jury on the law as to accomplices in such manner as...

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37 cases
  • State v. Dunlap
    • United States
    • Idaho Supreme Court
    • August 27, 2013
    ...comprised of ordinary words that do not require definition. See Zichko, 129 Idaho at 264, 923 P.2d at 971 (citing State v. Gonzales, 92 Idaho 152, 156, 438 P.2d 897, 901 (1968)). Dunlap also contends that the jury should have been required to make written findings. In support of this assert......
  • State v. Draper
    • United States
    • Idaho Supreme Court
    • September 13, 2011
    ...further defined when instructing the jury." State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996) (citing State v. Gonzales, 92 Idaho 152, 156, 438 P.2d 897, 901 (1968) ). The jury was instructed that, in order to issue a guilty verdict on the first degree murder charge, the murder ......
  • State v. Dunlap
    • United States
    • Idaho Supreme Court
    • August 27, 2013
    ...comprised of ordinary words that do not require definition. See Zichko, 129 Idaho at 264, 923 P.2d at 971 (citing State v. Gonzales, 92 Idaho 152, 156, 438 P.2d 897, 901 (1968) ). Dunlap also contends that the jury should have been required to make written findings. In support of this asser......
  • State v. Aragon
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    • June 22, 1984
    ...P.2d 711 (1969); State v. Jiminez, 93 Idaho 140, 456 P.2d 784 (1969); King v. State, 93 Idaho 87, 456 P.2d 254 (1969); State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968); State v. Chaffin, 92 Idaho 629, 448 P.2d 243 (1968); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967); State v. Koho,......
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