State v. Heisler
| Decision Date | 08 April 1954 |
| Docket Number | No. 5652,5652 |
| Citation | 272 P.2d 660,58 N.M. 446,1954 NMSC 32 |
| Parties | STATE v. HEISLER. |
| Court | New Mexico Supreme Court |
Catron & Catron, Santa Fe, for appellant.
Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., for appellee.
The defendant was convicted of first degree murder and sentenced to death. He seeks upon this appeal to overturn the judgment of conviction, to have set aside the sentence so imposed upon him and to be awarded a new trial. A recital of facts within the verdict of guilty follows.
In the month of October, 1951, the deceased, John Gunnish, of Martin's Ferry, Ohio, was traveling alone in his automobile from his home in Martin's Ferry, Ohio, to California where he hoped to secure work. While passing through Springfield, Missouri, he came upon the defendant on the roadside, apparently looking for a ride. He was hitch-hiking across the country from east to west and to use the defendant's own words, the deceased 'stopped to give him a lift.' Conversation between the two soon developed that both were California bound and it was agreed between them that defendant could travel with deceased, sharing expenses, on the trip.
Aside from car trouble in Texas from an overheated engine, the trip proceeded without incident until the evening of the second day when the parties stopped for the night a short distance west of Tucumcari, in Quay County where in the district court of that county the defendant was tried and convicted. The car was driven off the main U. S. Highway 66, on which they were traveling, on to the unused portion of an old highway, some 300 feet from the main highway, and there presumably parked for the night, pending resumption of the journey west the following morning. This was on the night of October 11, 1951. On the next afternoon, October 12, 1951, it was reported to the sheriff that a body had been found at the location previously described.
When found, the body was south of the road face down with shirt and trousers on but without shoes. The condition and physical marks of the area surrounding the body strongly suggested that it had been dragged from the edge of what had been the paved portion of the old highway to the point where found some ten feet away. The shirt on deceased was bloody and the pockets open, one of them being turned inside out. Near the body was found a pillow and a five gallon can, later identified by a garage attendant at Shamrock, Texas, as one received from him filled with water, while deceased and defendant were there the day before having work done on the overheated engine. The only identification on the body was a handkerchief in one of the pockets of the pants worn by deceased, bearing the letter 'J' on it.
A subsequent examination of the pillow found near the body disclosed in it a lead from a 22 bullet. Upon removal of the body to a funeral home in Tucumcari to determine the cause of death, it was ascertained there were wounds on the neck, face and hands. Also, fragments of bullets were found in two of the fingers of the deceased. No powder marks or burns were found on the deceased and the bullet wounds were all in the same line of fire. There were five entrance bullet wounds on each side of the face and two exit wounds. There was one wound on each side of the face, below the eye, one in the middle of the chin, and one on each side of the neck, about two inches down from the chin. As indicated, wounds were also found on the hands in one of which the bullet, or a portion of it, was recovered.
Some X-ray pictures were taken. They disclosed a broken jaw, also three bullets, or portions of them, still inside the head and neck of deceased. All of the bullets appeared to have been fired from practically the same position, with the gun in the same position and the path of the bullets through the deceased on the same trajectory, suggesting the probability that the body was in a reclining position when the shower of bullets, five of them, struck the deceased's face.
The automobile of deceased was found abandoned on a street in Amarillo, Texas, on October 17, 1951. An examination of it disclosed numerous blood stains on the back seat and floor of the car and on a blue denim jacket, which had been folded and placed beneath the arm rest on the back seat of the car as though used for a head rest. On this phase of the case, Sheriff Moncus of Tucumcari testified:
A pocket novel entitled 'They Can't All Be Guilty' was found, along with a pocket book, on the floor of the car. The novel was sent to the Federal Bureau of Investigation in Washington for possible fingerprints. The examination disclosed fingerprints of defendant on the pocket novel. Identification of defendant as the deceased's traveling companion, and information obtained of their movements prior to the homicide, sufficed to warrant the officers in broadcasting a pick up order for defendant. As a result, he was apprehended in Adin, California, on November 1, 1951. He was found to be impersonating his victim, being registered at a hotel under the name of John Gunnish, working and receiving his pay under that name. Following arrest, he admitted taking the deceased's wrist watch, billfold, money and identification cards. He had spent the money taken from deceased in gambling in Reno, Nevada, and had there pawned the wrist watch and gun used by him to kill the deceased.
The deceased had left his home in Martin's Ferry, Ohio, on October 9th, two days before he met his death, with $250. There was ample opportunity prior to the killing, during the course of their seven hundred mile journey together, for defendant to discover that deceased had money.
The defendant took the stand in his own defense and related his version of events transpiring at time of the homicide which he urged in support of his plea for a verdict of acquittal. The justification relied upon was self-defense. According to the story told by defendant, he was born in Brooklyn, New York, and was 30 years of age. He was a deserter from the army at time of the homicide, being 'on the run,' as he put it, by reason thereof when he met up with deceased. Soon after the two of them had bedded down for sleep on the night in question, deceased being on the back seat of the car and defendant on the front seat, the latter awoke, smoked a cigarette, and dropped off to sleep again. Some time later, he awoke for the second time to find the deceased on the back seat with defendant's suit case open, on seat beside him. He was asked by defendant 'What are you doing,' whereupon, as defendant stated, the deceased 'swung at me' and defendant 'swung back at him,' and in the ensuing struggle defendant found himself in the back seat where the fight, thus begun, continued. The defendant says he 'guesses' that 'he was part pushed and part pulled' over into the back seat. Then, continued the defendant:
The defendant continued with his story of events, telling how he took the body of...
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