Paseo v. State, 117 P. 862

Paseo v. State

117 P. 862 | Wyo. | 1911

Beard, Chiee Justice.

The plaintiff in error, Lorenzo Paseo, was convicted in the district court of Big Horn county of the crime of murder in'the first degree for the killing of one Charles Cole, and was sentenced to be hanged. Erom that judgment he brings the case here on error.

The case has been submitted in this court on briefs without oral argument, and the greater part of the brief of. counsel for plaintiff in error is devoted to a discussion of the evidence; it being urged that the evidence is insufficient *349to support the verdict and judgment. The defense was self-defense. Prom the evidence it appears that the homicide was committed about 2 or 3 o’clock a. m. October 30, 1909, in a saloon conducted by deceased and one Parsons, in the town of Lovell. That Paseo and one Robéis, who are both Mexicans, came to the saloon in the afternoon or evening before, and that they with deceased were playing cards until they ate supper together about 8 o’clock p. m. After supper they engaged in playing craps for a time, when a card game was resumed in which two or three others were engaged part of the time. During this time the parties were drinking more or less, but Paseo does not .seem to have been intoxicated. Paseo testified that Cole was cheating in the games and that he several times complained about it. But there does not appear to have been any quarrel between them until an assault was committed by one or the other of them which brought on the conflict in which Cole was shot and killed by Paseo. Paseo testified that the trouble commenced about the refusal of Cole to pay him a small winning in the game and that Cole struck him with his hand and grabbed him by the shoulder when he drew his gun from his hip pocket and struck Cole upon the forehead with it, knocking him to his knees. That Cole got up, went behind the bar, got a revolver and fired a shot at him, and that he then fired three shots at Cole, who fell, and he then went out of the front door. He was corroborated in his statement of the trouble up to the time he commenced to fire at Cole by Robéis, who testified that Cole got a revolver and fired at Paseo, when he (Robéis) ran out. Paseo and Robéis, fled together and were captured in the hills three or four days later. Pour other persons who were present at the commencement of the trouble testified that when some dispute about • the game arose between Paseo and Cole, that Paseo rose up, drew his revolver and struck Cole while he was sitting and then flourished his revolver around in the faces of those present when they all ran out of the saloon but one. Two of them state that after the striking of Cdle theré was a scuffle and *350that Cole said “that’s enough” two or three times. They all stated that Cole did not strike Paseo as he claimed. The one who remained in the room stated that Cole did not get a revolver or fire a shot, and that the only shots fired were the three by Paseo. No one testified to hearing more than three shots. Cole was found to have received three gun shot wounds, one passing through the shoulder, one through the flesh of the'leg and the third in the abdomen, which did not pass through the body; and a fourth wound on the forehead, a contused lacerated wound which divided the flesh for about three-quarters of an inch and reached the skull. Two bullet marks were found in the room, one through the front window and the other passing through a cigar case and out at the front of the building. No other bullet marks were found in the room, and a revolver kept in the saloon was found not to have been discharged. The foregoing is a sufficient statement of the more important part of the evidence to show the direct conflict between the testimony of Paseo and Robéis, and the other testimony in the case; and it was for the jury to say what the truth of the matter was. The jury found against the defendant, and we think the finding is sufficiently sustained by the evidence.

It is contended that the court erred in permitting certain witnesses to give their opinions as to where they thought the shots must have been fired from. Paseo testified that he was near a table at the end of the bar when he fired the shots, while the witness who remained in the room testified that he was between the front and back bar near the cash register and about midway along the bar. The opinions expressed by the witnesses tended to support the latter; and we think the testimony should have been excluded, it not being a matter upon which expert testimony was admissible, the jury being as competent as the witnesses to judge of that matter. But the witnesses were fully interrogated on cross-examination as to the reasons for their opinions and it appears that their opinions were based chiefly on the course of the bullet through the cigar case, which was *351testified to by them, and there was also in evidence a diagram of the room and furniture, purporting to show the course of the bullet. The facts from which the witnesses drew their conclusions being before the jury we do not think the mere expression of such opinions could have been so harmful or prejudicial to the defendant as to warrant a reversal of the judgment for that reason. Moreover, if the jury found from the evidence, as it evidently did find, that Paseo was the aggressor and assaulted Cole in the manner testified to by the four witnesses, then according to his own testimony he could not avail himself of a plea of self-defense, and it became immaterial- from where the shots were fired.

In their brief counsel for plaintiff in error complain of two instructions given by the court to the jury. We have carefully searched the record and fail to find any exception taken at the time to the giving of either of them. We have, however, examined all of the instructions given in the case, and they appear to us to fairly and correctly state the law applicable to the evidence in the case.

Another ground stated in the motion for a new trial was newly discovered evidence. The granting of a new trial on that ground is a matter largely within the discretion of the trial court, and its decision will not be disturbed unless it appears that the court has abused its discretion, or has violated a clear right of the appellant. Nor will a new trial be granted on that ground when the evidence claimed to have been discovered since the trial is merely cumulative, or upon unimportant matters in the case, or is in the nature of impeachment, or where the newly discovered evidence, if produced, would not in the opinion of the court affect the verdict. Numerous authorities on the subject are cited in the note to the case of Link v. U. P. Ry. Co., 3 Wyo. 681, and 14 Ency. P. & P. 791. In this case the greater part of the newly discovered evidence is in the nature of .impeachment and in one instance the person by whom it is proposed to prove that before the trial a witness for the state made a ’statement differing materially from his testimony was *352called and testified as a witness for the defendant and about his conversation with such witness. Other portions of newly discovered evidence were not important, if admissible. If the evidence set out in the motion for a new trial had been given on the trial, we are quite convinced that it would not have resulted in a different verdict. The trial court' must have been of that opinion, and in so concluding we think it did not abuse its discretion. We have considered all of the points presented in the brief of counsel, and have also examined the entire record and fail to find any prejudicial error, or that defendant was in anywise deprived of a fair trial. The judgment of the district court is therefore affirmed.

No further order is necessary as we are advised by the brief of the attorney general that the sentence has been commuted to imprisonment for life.-

Affirmed.

Scott and PotteR, JJ., concur.