State v. Jiminez

• Decision Date: 30 June 1969
• Docket Number: No. 10283,10283
• Citation: 456 P.2d 784,93 Idaho 140
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Telesforo JIMINEZ, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 784

456 P.2d 784

93 Idaho 140

The STATE of Idaho, Plaintiff-Respondent, v. Telesforo JIMINEZ, Defendant-Appellant.

No. 10283.

Supreme Court of Idaho.

June 30, 1969.

Larson & Smith, Nampa, for appellant.

Robert Robson, Atty. Gen., State of Idaho, Alan M. Schwartzman, Special Asst. Atty. Gen., Boise, C. Robert Yost, Canyon County Pros. Atty., Caldwell, for respondent.

McQUADE, Justice.

Appellant, Telesforo Jiminez, was charged with the crime of second degree murder in the death of Andres Gonzales. The case was tried before Hon. Robert B. Dunlap and a twelve-man jury. The jury found the appellant guilty for the crime of voluntary manslaughter. A judgment of conviction was entered on the 24th day of May, 1968. Appellant was sentenced to serve an indeterminate period of time not to exceed ten years in the Idaho State Penitentiary. This appeal is from the verdict and judgment.

Appellant Jiminez and the deceased Gonzales were good friends, having known each other from childhood. Both Mr. Jiminez and Mr. Gonzales were born in Charlotte, Texas. Appellant and the deceased were musicians and had, on many occasions, played together in the same band. Appellant and the deceased had lived in Nampa approximately a year and a half. At the time of the shooting incident, Mr. Jiminez was thirty-six years of age, married, and the father of fourteen children, seven of whom were living with him.

On the evening of December 8, 1967, Telesforo Jiminez had gone to the DeRail Tavern, in Nampa, for the purpose of playing his accordian. Appellant was also to discuss with the deceased the possibility of furnishing music at the DeRail the following evening. Appellant arrived at the DeRail at approximately 8:00 p.m. The deceased had arrived a little while before. Since arrangements had not been made that evening for a guitar player, the appellant did not play his accordian as he had previously intended.

Appellant stayed at the DeRail until about 11:00 p. m. At this point, the testimony of the bartenders and appellant diverges. The bartenders testified that shortly after appellant left the bar with Katherine Gammel and his father-in-law, Alfredo Neagle, the decedent, Andres Gonzales, also left the bar saying that he had to drive his wife to work. A few minutes later Andres Gonzales came hurriedly back into the bar saying that appellant wanted to fight with him. Appellant then came back into the bar and hit Gonzales in the back of the neck. Appellant and Gonzales scuffled and were separated. One bartender threw appellant out, while the other helped to restrain Gonzales. Appellant taunted Gonzales from outside the bar, and finally, after the bartenders had thought Gonzales had calmed down, Gonzales went out to fight appellant. There was a good fistfight going when appellant pulled the .32 caliber pistol from somewhere on his person and shot Gonzales in the chest at a distance of about six feet and as Gonzales was off balance near the fender of a parked truck.

Appellant himself testified that Gonzales had been angry because he could not play the drums that night with appellant even though the guitar player had not arrived. Gonzales was further angered because appellant left with his accordion that night even though he was to play the next night with Gonzales. When appellant left the bar, Gonzales followed him out and maligned and then returned to the bar. Appellant therefore decided that he would not play the next night with Gonzales and also returned to the bar to tell the proprietor that the deal was off. Angered by what Gonzales was saying as he came into the bar, appellant struck Gonzales. Then the scuffling occurred as the bartenders testified. Appellant returned to his car and was about to leave when Gonzales came out of the bar, pulled appellant from the car, and threw him to the ground. The fight began. Appellant's pistol began to slip from his sock where he kept it and the two began to fight over it. Appellant stated that, as he shoved Gonzales away from him against the truck, the pistol accidentally discharged.

Appellant Jiminez originally made six assignments of error. Of these, appellant abandoned at argument the sixth assignment of error relating to the district court's jury Instruction No. 31. We deal first with appellant's third and fourth assignments of error relating to jury Instruction No. 12 on the definition of murder and Instruction No. 18 concerning manslaughter. Appellant argues that the court erred in giving that portion of Instruction No. 12 italicized below:

'Malice may be presumed from the intentional use of a deadly weapon in a manner likely to produce death, not from the mere circumstance that a deadly weapon is used, because a man may use it in self defense or because of a sudden heat or passion caused by a provocation sufficient to make the passion irresistable, but it is the unlawful use of a deadly weapon whereby life make be taken, from which the law presumes malice.

'In a case of homicide by use of a deadly weapon, the law casts upon the person committing the homicide the burden of repelling the presumption of malice, unless the other evidence in the case shows that the killing was done without malice.'

Appellant contends that this portion of the instruction failed to take account of exculpatory elements of proof introduced as part of the case of the prosecution. Thus there should have been no presumption of malice at all, and to cast on defendant the 'burden of repelling' such a presumption had the effect of shifting the burden of persuasion to defendant. In essence, appellant contends that this instruction was erroneous on the question of the existence of malice as an element of second degree murder.

As argued by the State, however, assuming without deciding that this instruction was erroneous, it cannot be said that appellant was actually prejudiced because of it. This is true because the jury returned a verdict of guilty of voluntary manslaughter, a crime which the jury was instructed contained no malice. Thus, the verdict of the jury plainly indicates that the jury found no malice at all. Had the jury found appellant guilty of second degree murder, then indeed actual prejudice resulting from such an instruction might be shown. That was the basis for the reversal of the conviction of second degree murder in State v. Copenbarger. ¹ Here, however, any error in the murder instruction was effectively cured by the verdict finding appellant guilty of the lesser crime of voluntary manslaughter. ²

Appellant contends further, however, that Instruction No. 18 also failed properly to state the law on manslaughter. He assigns error to that portion of the instruction italicized below:

'Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances mitigating the offense to manslaughter, or that justify it, devolves upon him unless the proof in the case tends to show that the crime committed amounts only to manslaughter, or that the defendant's act was justifiable or excusable. While the burden of proving the circumstances in mitigation or justification of the homicide rests with the defendant, he is not required to establish such circumstances by a preponderance of the evidence, but to establish the circumstances to such an extent that the jury, after considering the whole evidence in the case, have a reasonable doubt as to his guilt. It can make no difference whether this reasonable doubt is the result of evidence on the part of the defendant tending to show circumstances of mitigation, or that justify or excuse the killing, or from other evidence coming from him or the prosecution.'

Appellant argues that this portion of the instruction, given in the terms of I.C. § 19-2112, misled the jury in that the jury would fail to understand that the burden of proof referred to meant only the burden of going forward with the evidence and not the burden of persuasion. In this respect, appellant relies upon Copenbarger, supra, and other cases. ³

It should be noted that all of the cases cited by appellant involved convictions of murder. In the Cornett and Foster cases, the trial courts had given instructions in terms of their respective statutes which were similar to I.C. § 19-2112. In these two cases, the murder convictions were reversed partly because no explanation whatever was given relative to the meaning of the phrase, 'burden of proving.' In the case at bar, however, the jury was instructed that the defendant need only show mitigating circumstances to such an extent that a reasonable doubt arises as to guilt. The Copenbarger and Deloney cases do appear to hold that, when elements of justification or excuse appear in the prosecution's case, it will be reversible error in murder convictions to give any instruction in terms of I.C. § 19-2112 even if the court attempts to explain the phrase, 'burden of proving.' Since the jury returned a verdict of guilty of voluntary manslaughter, however, any prejudicial effect was avoided.

Appellant also argues that the court erred in giving Instruction No. 29:

'You are instructed that while the burden of proving self defense is upon the defendant in this case, it is not necessary that he prove that he acted in self defense by a preponderance of the evidence. All that is necessary is that he introduce evidence or establish circumstances to such an extent that you, the jury, after considering all the evidence in the case, have a reasonable doubt as to whether the defendant acted in self defense, and you are further instructed that after examining all of the evidence introduced in this case you are conscious of having a reasonable doubt as to whether the defendant in firing the shot which resulted in the death of the said Andres M. Gonzales acted in self defense, then and in that event you should find the defendant 'not guilty."

Appellant simply states that this placed the burden of proving self-defense...