State v. Martin
| Decision Date | 09 July 1931 |
| Docket Number | 5108 |
| Citation | 300 P. 1034,78 Utah 23 |
| Court | Utah Supreme Court |
| Parties | STATE v. MARTIN |
Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.
John Martin, informed against as Jack Gibson and Jack Martin, was convicted of murder in the first degree, and he appeals.
AFFIRMED.
W. C Gease, of Price, for appellant.
Geo. P Parker, Atty. Gen., and L. A. Miner, Deputy Atty. Gen., for the State.
Defendant was convicted of first degree murder, sentenced to life imprisonment, and he appeals. Three questions are presented for decision. First, alleged error of the court in refusing to give an instruction withdrawing from the jury the question of first degree murder; second, refusal of the court to give a requested instruction on credibility of witnesses; and, third, an exception to certain remarks of counsel for the state in his argument to the jury.
The facts are these: The trial was had in May of 1929, while the homicide was committed November 25, 1922. James Pappacostas, the deceased, operated a place variously called the Last Chance Resort or the Last Chance Pool Hall in Helper, Utah. In the front part of the building was a soft drink parlor wherein were card tables, chairs, and a piano. In the rear were a kitchen and several bedrooms. Two girls, Eunice Russell and Ruby Balotis, occupied separate bedrooms in the rear of the building. The deceased lived in an adjoining room, and others occupied rooms in the building. Ruby Balotis was called as a witness and testified that on the morning of the homicide at about 11:30 or quarter of twelve she was in bed in her room, when she heard "someone knocking at Eunice's window, and I got up to look out and see who it was." That she then saw the defendant, Mr. Gibson, and that "he was cursing and told her to open the back door and get her things on and get out." Thereupon Eunice Russell opened the back door and let him in. That: That Pappacostas was lying in the hallway where the kitchen was.
She heard three shots fired, but did not see who did the shooting and did not see any weapon in the hands of the defendant. At about the time of the first shot she heard Eunice Russell and Gibson arguing, and then the deceased talking to them, and as the first shot was fired she heard the deceased say, "Don't shoot." On cross-examination she testified as follows:
This witness further testified that she had seen the defendant twice at the Last Chance Resort the day before the homicide, and had talked with him, that he had come there to talk with Eunice Russell, and that the last time he was there was shortly before 3 o'clock on the morning of November 25th. It seems that about six months before the trial of this case a man named H. O. Phillion under the name of Jack Gibson had been charged with the killing of Pappacostas, but at some stage of the proceeding the cause was dismissed as to him. These facts were developed on cross-examination of the witness Ruby Balotis, who testified:
The witness was shown a photograph of Mr. Phillion, whom she identified as the man she had seen in the courtroom. On re-direct examination she testified:
And on recross-examination:
The physician who was called immediately after the shooting testified to examining the body of Pappacostas and that he was dead when the examination was made. He found one bullet wound through the chest and one through the upper part of the left leg. Death was caused by the wound in the chest.
Another witness, Bill Batonis, testified that on the day of the homicide he was crossing the river on his way to Helper when he heard two shots; that he at once went to the Last Chance Resort and there saw Pappacostas lying dead; that he immediately left and went back of that place toward the river where he saw a man with a gun, who, when asked why he killed the man, told the witness to stay back, which he did; that the man he saw with the gun was the defendant Martin; that he had seen him in Helper a couple of times before that. On cross-examination he was asked if he saw any one come out of the back door of the Last Chance Pool Hall after hearing the shots. His answer was "I no see anybody; I see the man stay there; I see a man standing there; I don't know; I no see anybody come out of the door."
The witness Harry Mahleres testified that in January prior to the trial he was on the train between Provo and Price, and that he saw the defendant with the sheriff on the train; that:
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State v. Turner
...... circumstances attending the killing show an abandoned and. malignant heart." Certainly, it was for the jury to find. whether or not there was "considerable provocation". for the killing. That is essentially a jury question. State v. Martin , 78 Utah 23, 300 P. 1034;. People v. Olsen , 4 Utah 413, 11 P. 577;. State v. Buffington , 71 Kan. 804, 81 P. 465, 4 L.R.A., N.S., 154. . . So the. argument that the verdict was probably a compromise between. jurors holding for first or second degree murder and others. ......
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State v. Jensen
...always one for the jury; that universally accepted principle of law is well stated for this court by Mr. Justice Folland in State v. Martin, 78 Utah 23, 300 P. 1034. This same rule is also asserted without qualification in Vol. 3, Warren on Homicide, Perm.Ed., p. 307, citing many authoritie......