201 P. 551 | Ariz. | 1921
By information the appellant was charged with the crime of murder, committed on Janu
“(1) The information upon which defendant was tried and convicted was not a legally filed information, and the court did not have jurisdiction under said information to try and convict the defendant.
“(2) The defendant was never legally arraigned under such information, nor did he waive such an arraignment. ’ ’
These alleged errors are predicated upon the following facts: The county attorney filed two informations against the defendant, one on February 2, 1921, upon which defendant was arraigned the same day and given until February 5th to plead. Neither on February 5th, nor on any other day, was defendant’s plea to the first indictment taken, but on said day he was arraigned on a new information, and given until February 7th to plead. On the convening of court on February 7th the county attorney asked to be allowed to withdraw the first information and to file the second one, and to the second he then pleaded not guilty. The record discloses that defendant was charged with the same offense in the informations as in a complaint theretofore filed before a committing magistrate upon which he waived preliminary trial. At the trial and at the time when the prosecution was about to offer evidence upon the charge in the information, the appellant objected to the introduction of any testimony “on the grounds that the court does not have jurisdiction of the matter because of the
The provision of the Constitution the defendant asserts was violated, forbids the prosecution of any person for felony by information without his having had a preliminary examination or waived such examination. The record in this case clearly' shows that defendant waived the preliminary examination for the specific offense with which he was charged and convicted. We take it that the whole of defendant’s grievance is that the county attorney was permitted to withdraw the first information filed against him
The next assignment is directed to the testimony of Helen Teeter, who was testifying in behalf of the state, and to the language of the court in that connection. We give the question and answer, and also the court’s remarks as they appear in defendant’s assignment.
“Q. Do you recall anything that-happened there at that time concerning the shooting? A. Yes, sir.
“Q. Go ahead in your own words and tell what you saw and heard at that time and place. ... A. My father pushed the door open . . . and said, ‘What is the matter, man?’
“Mr. Hart: We object to what the father said, if the court please.
“The Court: Just a minute, please. The objection is overruled. This was addressed to what I would presume to be the defendant.”
It is obvious that it cannot be determined that the . witness’ answer or that part of it to which defendant objected was competent or not, nor can it, for that matter, be determined whether the' remarks of the court were error from an inspection of the assignment. In other words, the assignment does not contain enough of substance upon which to base a decision. The objection assigns no reason why what the -father said was not competent or relevant or material. No motion to strike the answer was made, nor were the remarks of the court objected to nor asked to be stricken. For the failure to specify wherein the answer of the witness was improper or the failure to object to the court’s remarks so that he might correct them if erroneously made, we might well refuse to
The defendant in his brief insists that the evidence was hearsay, and its admission for that reason was error. This cannot be so, inasmuch as the language was directed to the defendant and was uttered in his presence. There had been evidence by Mr. Teeter that his remark was addressed to the defendant, and the comment of the court was doubtless based upon that positive testimony. The court was clearly right in overruling the objection, and in view of the positive identification of the defendant as the person to whom it was addressed, in presuming that the remark was addressed to the defendant.
Defendant’s next assignment is in the following language:
*74 “While, the witness F. L. Groulette was testifying for the state, the following question was asked:
“ ‘Q. Did you find a bullet hole there? A. Tes, sir.
“ ‘Mr. Thalheimer: If your honor pleases, we object to the witness testifying, unless he testifies as to the character of the indenture upon the front of the door.
‘ ‘ ‘ The Court: That is what he is going to do.
“ ‘Mr. Thalheimer: He said a bullet hole.
“ ‘The Court: Counsel has said a bullet hole. He is asking about a bullet hole. I think the objection may be overruled. He may answer. ’ ” '
Defendant argues in his brief that the above evidence whs objectionable because it' was the opinion or conclusion of the witness. That may be true, but no such objection was made at the time, nor was it objected that the witness was not competent as an expert. In other words, the question which he now presents was never presented to the lower court for a ruling.
Two witnesses, Henry B>. Swink and Harry J. Saxon, testifying in behalf of the prosecution, were permitted, over the objections of the defendant, to state a confession of one Victoriano Martinez and the defendant, made at Calabasas near the Mexican line, at the time of their apprehension. The admission of this testimony, it is earnestly urged, was error. The confession and the circumstances under which it was made can be best understood and appreciated if we relate briefly the facts of the crime and circumstances of the arrest of the defendant.
On the evening of January 11, 1921, at about 6:30 o ’clock, two Mexicans, operating together, held up and robbed what is known as the Baber-Jones Store in the city of Tempe, Maricopa county. One of them stood guard on the outside with a rifle, while the other entered the store and held up Mr. H. C. Baber, a member of the firm, and took from him about $290.
On the morning of the 14th of January, at about 8:30 o’clock, the automobile stage running between Tucson and Nogales reached Calabasas, where there happened to be at that time two United States government inspectors and line riders, Henry B. Swink and Earl A. Lemon. There were also there at the time two cattlemen, Harry J. Saxon and B. Pugh Leather-man. After the stage had stopped the defendant and his companion Victoriano Martinez alighted, and they had proceeded away from the stage only a few feet when Swink said to them, “Stop! You are prisoners.” He then called to Lemon, who brought a pair of handcuffs. As Swink was walking with his head down, unlocking the handcuffs, and when he had approached within about four feet of his prisoners, the defendant, Roman, jumped back and said, “No,” and at the same time drew a revolver, threw it down on Swink, and demanded that the latter surrender, at the time discharging his revolver. At about the same time someone shot at the defendant, striking the arm holding his revolver, whereupon it fell to the ground; almost instantly he was shot again, and he fell to the ground, and as he fell he called to his companion, Martinez, to shoot. Martinez thereupon grabbed the gun that had fallen from defendant’s hand, and threw
Harry Saxon relates that he took a seat right near by the defendant and Martinez, and asked them the question:
“What have you boys done that makes you so wild?” and “they hesitated a little, and then Martinez spoke up and said, ‘We robbed a store. . . . ’ Martinez, before he told me that, turned to this Boman and said, '‘We might as well tell; we are up against it now,’ and' Boman nodded his head as if to say, ‘Yes.’ Boman didn’t talk much. He seemed to be pretty sick. Martinez then said, ‘We robbed a store and killed some few people in Tempe,’ and I said to Boman, ‘Is that right?’ and he said, ‘Yes.’ ”
Upon Swink returning from the house where he had gone to get a drink of water or a blanket, Saxon asked Martinez and defendant questions in Swink’s presence, and they made the same statement, or practically the same statements. Swink in his testimony relates that he heard Saxon say:
“What have you fellows done that you didn’t want to be arrested? If you are the men that done the robbery and murder at Tempe you better say so because you will save some innocent man some suffering. ’ ’
And to this Martinez said:
“We are the men that robbed the store and killed some people at Tempe.”
Then Boman, being asked by Saxon, “Is that so?” nodded his head in assent and said, “Yes.” Before the witness Swink testified as to the confession the court asked the defendant whether he wished to question the witnesses concerning the circumstances of
The defendant testified in his own behalf. On his direct examination he gave his version of the confession as follows:
“One of the gentlemen in the crowd says to us, ‘If you are the ones that made the assault at Tempe, why do you not say it?’ As I did not consider myself guilty, I didn’t answer and kept quiet. Then Martinez answered and says, ‘Yes, I am,’ and they says, ‘Are you?’ and I says, ‘I want some water.’ That was all, and I didn’t speak a word. ... I didn’t nod my head when they asked me whether what Martinez said about the crime in Tempe was true. ... I was sick, but I was with my five senses.”
The question is: Were these extrajudicial statements by defendant under the circumstances in which they were made voluntarily made? If so, they were admissible. Otherwise, they were not. It is the law that confessions “obtained by coercion or threat or promise will be subject to objection,” Hardy v. United States, 186 U. S. 224, 46 L. Ed. 1137, 22 Sup. Ct. Rep. 889; Bram v. United States, 168 U. S. 532, 42 L. Ed. 568, 18 Sup. Ct. Rep. 183 (see, also, Rose’s U. S. Notes). This is upon the theory that such confessions are as apt to be false as true.
“The fundamental principle upon which confessions have been excluded which are induced by promises or threats, hope or fear, is that under such circumstances the temptation to speak falsely is so great as to render the statement entirely untrustworthy.” Territory v. Emilio, 14 N. M. 147, 89 Pac. 239.
The defendant and Martinez, at the time they made their statement, had not been accused of any crime, and it is doubtful if they were even suspected by Swink as having committed the murders and robbery
True, Swink in his testimony gives a slightly different version of what was said when upon his return Saxon sought to get a repetition of the confession made to him. Swink says Saxon’s question was:
“What have you fellows done that you didn’t want to be arrested? If you are the men that done the robbery and murder at Tempe you better say so because you will save some innocent man suffering.”
The courts have in many cases held that an adjuration to an accused “that it would' be better to tell the truth” may be so worded as to imply a threat or a promise making it inadmissible as evidence. A number of such cases are cited by Mr. Justice WHITE in his very able and elaborate opinion in Bram v. United States, 168 U. S. 532, 42 L. Ed. 568, 18 Sup. Ct. Rep. 183. We do not think the admonition to the defendant and Martinez in this case is of that character. In effect they were told that if they had committed the crime at Tempe, by admitting it, they would save innocent persons from thereafter being accused of it or punished for it. There was no promise of leniency held out to them in that; nor did
The confession was not inadmissible, because it was made to an officer. Sparf v. United States, 156 U. S. 51, 715, 39 L. Ed. 343, 15 Sup. Ct. Rep. 273; Wilson v. United States, 162 U. S. 613, 40 L. Ed. 1090, 16 Sup. Ct. Rep. 895; Lindsey v. State, 66 Fla. 341, Ann. Cas. 1916C, 1167, 50 L. R. A. (N. S.) 1077, and note 1084, 63 South. 832.
The defendant who was a witness in his own behalf did not claim in his testimony that any coercion or threat or promise was made by Swink and others who arrested him and Martinez. He admits that Martinez confessed that he was guilty of the Tempe offense. From his own month he admits hearing Martinez confess to the crime. He says that he was in possession of his “five senses.” He does not deny admitting that he was present and participated with Martinez in the crimes. We think this assignment of error is without merit, and that the confessions were properly admitted.
The refusal of the court to give the following instruction requested by the defendant is next assigned as error:
*80 ‘‘You are instructed that, even though you may believe from the evidence that the defendant was the man who shot H. C. Baber, the owner of the store which was robbed, unless you further believe from the evidence beyond all reasonable doubt that the defendant fired the shot which killed the boy Hintze, and that such killing of the boy Hintze was a willful,, premeditated, and deliberate action on his part, you must bring in a verdict of not guilty. ’ ’
From the statement of facts heretofore given it is clear that this instruction is erroneous, and was very properly refused. It could make no difference whether defendant or Martinez actually shot and killed Thomas Hintze. It is clear that they acted together in such a manner as to make each responsible for the act of the other in the furtherance of their criminal purpose.
We have very carefully and ’thoughtfully looked into the record of this trial, and are satisfied that the defendant was accorded all of the rights.he was entitled to under the law, and that no error of a prejudicial character was committed in his trial.
The judgment is therefore affirmed.
The date of April 29, 1921, originally fixed for defendant’s execution, having passed, it is ordered that judgment be entered by this court fixing the time when the original sentence of death shall be executed, as required by section 1177 of the Penal Code.
McALISTER, and FLANIGAN, JJ., concur.