State v. Oschoa

• Decision Date: 12 January 1926
• Docket Number: 2717.
• Parties: STATE v. OSCHOA.
• Court: Nevada Supreme Court

242 P. 582

49 Nev. 194

STATE v. OSCHOA.

No. 2717.

Supreme Court of Nevada

January 12, 1926

Appeal from District Court, Washoe County; George A. Bartlett Judge.

Carlos Oschoa was convicted of involuntary manslaughter, and he appeals. Affirmed.

Frame & Raffetto, of Reno, for appellant.

M. A Diskin, Atty. Gen., Wm. J. Forman, Deputy Atty. Gen., and L D. Summerfield, Dist. Atty., of Reno, for the State.

DUCKER J.

Appellant was charged with murder and convicted of involuntary manslaughter. The appeal is from the judgment and from an order overruling appellant's motion for a new trial. The appellant was convicted on circumstantial evidence. It is claimed that the evidence is not sufficient to support the verdict. On the morning of December 29, 1924, at about 9 o'clock, one Nick Gaerdoges, a Greek, was found dead in his cabin on Monkey Island in Reno, Nev. Death had been caused by a bullet wound in the head. There was also a bullet wound in the chest, and the body was considerably bruised and lacerated. The body, fully dressed, was found lying on the floor of the cabin. On the floor near the body were found three revolver shells, a pair of overalls, and two shirts. The lock on the door of the cabin was sprung, apparently from the outside. According to the testimony of one Jennings, a witness for the prosecution, who was living in a house situated about 25 or 30 feet from the cabin of the deceased, he was awakened from his sleep on the night of the 28th of December by a noise or scuffle in the latter place. The scuffle did not last but a second or more, and then he heard some one say, "Don't! Oh, don't! Don't!" The last exclamation was in a loud tone of voice; very loud, the witness said. The witness was unable to state what time of the night it was when he heard the scuffle and exclamations. Appellant's presence in Reno near the time of the killing was sworn to by three witnesses. According to testimony of Manuel Atyde, he saw appellant on the night of the killing in company with Gaerdoges. He saw them talking to each other on the sidewalk in front of the Reno Garage on Second street in Reno, as he passed by, but was unable to say what time it was. He exchanged greetings with them as he passed. He was acquainted with Nick Gaerdoges, and had seen appellant before about town.

Peggy Parrott testified as follows: She lived in Reno and knew the appellant. When her boy was sick in the hospital, appellant was there also and she came to know him in that way. She had seen him also on the streets of Reno a number of times before the killing. On the morning of December 29, 1924, appellant came to her house in Reno and knocked on the screen door. She opened the door and talked to appellant. He wanted a place to sleep. She told him she had no blankets for him. He said, "All right," and turned around and walked away. He was there two or three minutes and stood within two feet of her. He talked to her in English. Mary Skimmerhorn testified at the preliminary examination. Her presence at the trial could not be obtained, and after a proper showing in this regard her deposition taken at that examination was introduced in evidence. In substance her testimony is as follows: She lived in Reno and knew Nick Gaerdoges, called "Nick the Greek." She heard of his death and saw appellant the next morning in Chinatown in Reno at about 8 o'clock and talked with him. She had seen him and talked with him before. On this occasion he had a rag around his arm. She saw blood stains on his coat and pants. She asked him what was the matter with his arm, and he told her that Nick the Greek cut his arm. He also told her that he was going to get out of town.

The sheriff, who found one of the shirts in the cabin on the morning of the discovery of the homicide, testified in regard to it and to certain scars on the appellant's body as follows: After the appellant had been apprehended, he, the sheriff, had him put the shirt on. He said that it fitted him very well, and that there were two holes in the left sleeve of the shirt; that the scars on appellant's left arm and left shoulder were in range of these holes; that there was also a scar on appellant's chest.

At the request of the district attorney and over the objection of counsel for appellant, the latter was required by the court to remove his coat and shirt and permit the jury to see the scars on his body. He was also required to put on the shirt in question and submit to a view by the jury. The shirt was introduced in evidence and handed to the jury for inspection.

Jose Salazar, a witness for appellant, testified substantially as follows: He lived in Westwood, Cal., and had known appellant for nine years. They were brothers-in-law. Appellant came to his house in Westwood on November 11, 1924, and lived there until he was arrested and brought to Reno on the present charge. He slept at the home of the witness every night from Christmas during December and January. They slept in the same bed. The marks on appellant's body were there when he came to Westwood on November 11th. He had two marks on his body when he came to Westwood after leaving the hospital. The other marks had been on his body for a long time. The scar on the left arm had been there for nine years. In rebuttal of this testimony concerning the scars on the left arm, the state placed Charles R. Hillhouse on the stand. He testified as follows: He was clerk of the identification bureau of the city of Reno police department. His duties consisted of photographing finger prints and taking a description of all prisoners. On November 10, 1924, he examined appellant's arms and face for scars and distinguishing marks. The appellant was required by the court to exhibit his left arm to the witness, and his attention was called to a scar about an inch in length on the outer side of the left arm. The witness testified that the scar was not there when he made the former examination.

The appellant interposed the defense of an alibi. He was a witness in his own behalf. He testified in substance that after being ordered out of town by the chief of police he left Reno, going to Westwood, Cal., and was at the latter place when the homicide was committed.

Six other witnesses also testified in support of this alibi. Aside from the appellant, the testimony of only one of these witnesses, that of his brother-in-law, Jose Salazar, if true, made it impossible for the appellant to have committed the offense. It appears from the evidence that it is about a four hours' drive by automobile between the two places. The appellant could have killed the deceased and have been seen in Westwood at the times as related by the witnesses. In other words, their testimony, if true, did not establish a complete alibi. An alibi is not complete unless it reasonably appears therefrom that the defendant could not have been at the place where the crime was committed. On cross-examination two of these witnesses admitted having told the sheriff that it was on a date other than the 28th or 29th of September that they saw the appellant in Westwood. Another of these witnesses on cross-examination claimed to have seen appellant in Westwood at times when he was admittedly in Reno. The weight of the evidence in support of the defense of alibi was, of course, for the jury, whose verdict shows that it was not established to its satisfaction.

As said in Bast v. Commonwealth, 124 Ky. 747, 99 S.W. 978:

"An alibi is the strongest possible defense when thoroughly established, but it becomes, at once, the most dangerous and weakest of all defenses that could be set up, when it is not thoroughly established."

The evidence on the part of the prosecution showed that appellant was in Reno on the night of the killing. He was abroad in the early morning hours looking for a place to sleep, as testified to by the Indian woman, Peggy Parrott. He was last seen that night in company with the man who was killed. The most damaging testimony against him was that given by the Indian woman, Mary Skimmerhorn, who talked with him the next morning, and whom he told that Nick the Greek had cut his arm and that he intended to get out of town. True, there are statements in this testimony, brought out on cross-examination, such as: "He didn't say nothing to me." "He didn't tell me anything," which counsel for appellant detach from the whole testimony and argue that they render it unworthy of belief. The testimony ought not to be considered in this way. The witness was evidently an illiterate Indian woman whose ability to express herself clearly in English was extremely limited. Statements apparently contradictory seemed to be characteristic of her speech. For instance, she said: "I didn't say nothing. I say, 'What's the matter with your arm?' I say that to him." Another answer was as follows: "I didn't say nothing. I go away, and I never spoke good to him. I ask a little bit." And again: "He didn't say nothing, only, 'I'm going to get out of town."' These were merely peculiarities of expression and were not sufficient alone to warrant the jury in disregarding her testimony. If the jury believed her testimony, it connected the appellant directly with the commission of the crime. Appellant's attempt to account for the scar on his left arm by the testimony of his brother-in-law, which was rebutted by the state, was, if the jury believed the latter testimony, a circumstance against him.

It is difficult to tell what, if any, inferences the jury may have drawn from the inspection of the shirt with reference to the appellant's body; but aside from this, the other evidence was sufficient to justify the jury in concluding the appellant killed the deceased. There were blood stains on the shirt and rents in it, one of which in the...