212 P. 458 | Ariz. | 1923
Defendant is under sentence of death upon a conviction of murdering Anna C. Johnson, on November 15, 1921, in Pima county. He was
We do not think it necessary to set out the harrowing details of the crime only as it becomes necessary to elucidate the errors defendant complains were committed in the course of the trial. He was tried twice, the first jury failing to agree upon a verdict. On April 22, 1922, the case was set down for a retrial, May 15th. This setting was later vacated and the case reset for May 19, 1922. Upon the call of the case for trial, defendant’s counsel presented a motion for a continuance on account of the absence of material witnesses. We assume it appeared from the motion and affidavit in support thereof, or otherwise, that the witnesses were out of the jurisdiction of the court at the time, but that they had testified in the previous trial of defendant upon the same charge. The action of the court thereon, as shown by the minutes, is:
“Motion was by the court denied for the reason that the county attorney consents that' the testimony of said witnesses given on the former trial of this case may be read.”
The court’s refusal to grant a continuance is assigned as the first error. The motion and affidavit supporting it are not in the record on appeal, and therefore not available for examination as to the sufficiency of their contents. Although the court’s denial is based upon other grounds, it may be that the showing for continuance was entirely inadequate. Unless the showing was that such witnesses would testify to a different state of facts than in the former trial, or to additional facts material to his case, we think the denial of the continuance was in the exercise- of a proper and sound discretion. At all
The next assignment is directed at an order of the court striking out a statement made by. defendant while testifying in his own behalf. He testified that some time after he left the scene of the tragedy he met some Mexicans or Indians, in an automobile, and asked them for a drink of water and some directions. Upon motion of the county attorney, this was stricken, and, we have no doubt, properly so. If the fact that defendant asked for a drink, or directions, was material, he should have proved it by someone other than himself, for coming from him it would be self-serving. Aside from that, it was clearly immaterial; it did not tend to prove any fact in issue.
The introduction of the trousers of Peter Johnson, worn at the time Anna C. Johnson was killed, over defendant’s objection, is next assigned as error. To obtain a clear understanding of this assignment, it will be necessary at this point to set out some of the facts:
Peter Johnson and Anna C. Johnson, his wife, and defendant had never met until November 14, 1922. The defendant, coming from California by train, arrived in Tucson November 13th; and the Johnsons, traveling by automobile, arrived in Tucson the afternoon of the 14th. The Johnsons stopped in front of a service station, Mrs. Johnson remaining in the car, while her husband alighted to make some inquiries. When the latter returned to the car, he found defendant talking to Mrs. Johnson. Defendant told the Johnsons that he was traveling by automobile going east from California; that his machine had broken down between Sentinel and Ajo; that he had come to Tucson for repairs, and expressed the wish to ride with the Johnsons (who were on their
The defendant’s version of the matter was that they were, ambushed and shot by parties from the roadside.
Peter Johnson, although severely wounded, suddenly started the car (which had stopped during the shooting), and as it lunged forward the defendant jumped, or fell, from the car. Some fifteen miles from this point Johnson stopped the car and discovered that Anna O. Johnson, his wife, was dead.
As before stated, this ruling is assigned as error. The principal reason urged against the trousers as evidence is that they did not tend to throw any light upon the nature and location of wounds upon the body of the witness, since all his wounds were upon the upper part of his body. It is said “they possessed not the slightest probative value; they proved nothing.” We think it may be said that while perhaps they proved nothing, it is not shown that they could possibly have had any prejudicial effect upon the jury. While counsel in their argument speak of the trousers being bloody, there does not seem to be a scintilla of evidence to that effect. The reason given by the courts for rejecting clothing that illustrates no point is that they, being covered with blood, can have no other effect than to excite prejudice in the minds of the jury against the defendant. The coveralls were let in without objection, and since, as their name implies, they must have been worn outside of and over the trousers, they, too, should be covered with blood, and yet that part of them that covered his trousers shows only a few scattered spots of blood. The objection made by defendant’s counsel to the introduction of
The rest of the clothing of Peter Johnson introduced in evidence was sent to this court upon the written request of defendant, but there was no request of the clerk of the superior court to send up the trousers and they are not here as an exhibit. The statute (paragraph 1256, Civil Code) makes it the duty of the party appealing to file with the clerk “a notice specifying the papers or portions of the record which he deems necessary to present the questions involved on such appeal.” Since the trousers were not described or characterized, either in the testimony or the objections to their introduction, as having any blood marks upon them, or other evidence tending to excite ' pity or prejudice, and they not being here for inspection, we will not assume the existence of that condition. We must try the assignment upon the record, and not upon what counsel say.
We are convinced that the authorities cited by defendant upon this question have no application to the state of facts before us. The rule is well settled that clothing may be properly admitted as evidence in cases where they afford evidence of the character of the wounds and the manner in which they were inflicted, or where doctors and other witnesses disagree as to conditions, or as a part of the res gestae, or as forming a link in the chain where the evidence is circumstantial. State v. Stansbury, 182 Iowa, 908, 166 N. W. 359. But they should not be admitted when their sole purpose is to excite the pity or prejudice of the jury by reason of their bloody or gruesome condition. State v. Moore, 80 Kan. 232, 102
The next assignment of error is that the witness A. J. Eddy was permitted to testify for the prosecution as an expert without qualifying.
At the time defendant was arrested he had in his possession a 32-caliber Mauser pistol, and there was found in a handbag of his in the Johnson automobile the larger part of a box of 32-caliber cartridges. Two 32-caliber bullets were taken from the body of Mrs. Johnson and another one was found where she was fatally wounded. Eddy was called by the prosecution to explain some experiments and investigations he had carried on during the previous three months with defendant’s pistol, and other 32-caliber pistols of different makes. When it developed in the preliminary examination of the witness by the prosecution that the purpose was to show by him the results of his experiments and investigations, counsel for defendant merely suggested that he should show expert knowledge before being permitted to testify, and thereupon the county attorney stated he was not attempting to qualify Mr. Eddy as an expert, but to show the results of his investigation. The witness thereupon proceeded to detail what he had done in the way of experimentation and investigation with defendant’s pistol, and, incidentally, as side lights, described the riflings of a Mauser 32 and other makes of 32-caliber, and the markings on bullets discharged from such guns, and pointed out to the jury the similarity of bullets he had shot from defendant’s pistol to those bullets taken from the body of deceased, and the dissimilarity of these to other 32-caliber bullets shot from makes differing from the Mauser; and gave much other testimony
The learned trial judge took the position that it was unnecessary that the witness be qualified as an expert to testify to his experiments and the results thereof, and for the want of a better term designated such testimony as “semi-expert”; and relying upon the rule announced in Spence v. Territory, 13 Ariz. 20, 108 Pac. 227, held the witness was competent to testify. In the Spence case witnesses were permitted to give their opinions as to whether the bullets inflicting the death wounds had entered from the front or back of the head of deceased. Their qualification
“It is contended that the witnesses were not experts, and should not have been permitted to testify. It is true that they were not experts in the sense that they were possessed of scientific or technical knowledge of the subject concerning which they expressed their opinions, but they were possessed of information that undoubtedly was useful to the jury. They did not testify as experts, hut merely stated conclusions of fact derived from their observations. In Hopt v. Utah, 120 U. S. 430, 30 L. Ed. 708, 7 Sup. Ct. Rep. 614 (see, also, Rose’s Ú. S. Notes), a witness was permitted to give his opinion as to the direction from which a blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opinion upon that point. The court says: ‘The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observations the result of which they give, and the confidence bestowed on their conclusions will depend upon the extent and completeness of their examination and the ability with which it is made. ... It was a conclusion of fact which he would naturally draw from the examination of the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact such as men who use their senses constantly draw from what they see and hear in the daily concerns of life.’ ”
Evidence of the experiences and observations of witnesses is of frequent use in the trial of causes. It may be of an expert nature requiring special knowledge of the subject matter, or it may be such knowledge as comes to the ordinary layman. Wig-more on Evidence, vol. 1, § 555 et seq.
The qualification of witnesses called to testify concerning matters falling within their observation or ex
The motion to strike was directed at all of the testimony of the witness Eddy. It may be, and we are inclined to think, that some of his testimony was improper and should have been stricken. If those parts had been objected to during the examination of the witness, or by motion at the close of his examination specifically indicating them, we have no doubt the court would have refused to let the witness testify, or have stricken the testimony after it was given. No such procedure was followed. The motion to strike the testimony of Eddy as presented, if granted, would have had the effect of taking from the consideration of the jury, not only testimony that possibly should not have been admitted, but testimony which, under all the rules of evidence, should have been admitted. It was impossible for the court to grant the motion in the form in which it was presented.
In the case of Rush v. French, 1 Ariz. 99, 25 Pac. 816, which is frequently quoted by text-writers and courts, it is said:
“Counsel are held to the grounds . . . stated at the time they call for a decision of the judge below, because they are supposed to know the law of their case, and if they do not offer other objections, they are supposed to waive them, and evidence admitted without valid objection should stand.”
“Appellate courts are not organized to hear cases de novo, but to review the errors of the inferior courts. If a party would take advantage of the admission of improper evidence on appeal or on motion for new trial, it is necessary to make objection at the time it is offered. It is too late after the evidence is admitted to the jury or after motion in arrest of judgment.”
And Wigmore on Evidence, volume 1, section 18, says:
“The initiative in excluding improper evidence is left entirely to the opponent — so far at least as concerns his right to appeal on that ground to another tribunal.”
We are satisfied the court did not commit error in refusing to strike the testimony of the witness Eddy.
Defendant, testifying in his own behalf, to the question propounded by his counsel, “Were you ever convicted of a felony in the state of Oklahoma?” answered, “Tes, sir.” On cross-examination the county attorney asked defendant if he was convicted of murder at Muskogee, Oklahoma, on June 27, 1916, and given a life sentence. The objection to this question, on the ground of incompetency, was overruled, and defendant answered in the affirmative. This ruling of the court is assigned as error.
The general rule, in the absence of a statute regulating the matter, when a defendant offers himself as a witness, is that it may be shown, either by the record or on cross-examination, that he has suffered previous conviction of a felony or felonies. Either method is permissible. 2 Wigmore on Evidence, §980; Commonwealth v. Walsh, 196 Mass. 369, 124 Am. St. Rep. 559, 13 Ann. Cas. 642, and notes 643 and 644, 82 N. E. 19.
The record, which is the best evidence of a previous conviction, may always be introduced. It, of course,
Other questions were asked the defendant on cross-examination pertaining to his life’s history, on the theory that he having taken the stand in his own behalf was subject to the same rule in that regard as any other witness. In West v. State, 24 Ariz. 237, 208 Pac. 412, referring to section 1229 of the Penal Code, we say:
“By the statute he [defendant] is given an opportunity to testify, and if he accepts it he must submit to the same rigid cross-examination as other witnesses.”
The trial court very carefully guarded the rights of the defendant upon the cross-examination and confined the prosecution to very narrow limits in the inquiry into his past life.
We have carefully examined all the assignments of error made by the defendant. There is no suggestion that the evidence does not support the verdict and judgment. The jury, of course, had no doubt of the defendant’s guilt, and our reading and careful consideration of the evidence convince us that the verdict is right.
The defendant Hadley accepted the accommodation of a ride from the Johnsons, and in a lonely desert place, at an unsuspecting moment, heartlessly and cruelly snuffed out the life of Mrs. Johnson. By a miracle the husband, with four wounds in his body,
The judgment of conviction is affirmed.
McALISTER, C. J., and LYMAN, J., concur.