*1 State Board of Decision Arizona
Funeral and Embalmers is af- Directors
firmed.
UDALL, LOCKWOOD, J., J., C.V. C. JJ., JENNINGS, BERNSTEIN
concur. P.2d 274 Arizona, Appellee,
The STATE WILLITS, Appellant.
Roy David
No. 1343. Arizona,
Supreme Court
En Banc.
June 1964.
Rehearing Denied June *2 13-922, and two counts of
§ assault with a. deadly weapon in violation A.R.S. 13— § judgment From the final of convic- tion of violation A.R.S. 13-922 and the- § sentence years, thereon of twenty-five ten to penitentiary, state brings ap- he peal.
The following facts summarize the rec- ord. On 29,. the evening of December 1962, defendant went to the home of Eddie- Urbano Tucson. His former- Janice wife, Willits, Arthelia and their chil- two dren, David, Kenneth and living- were then at the Urbano pur- residence. Defendant’s pose, testified, as he was to with- talk persuade Arthelia and attempt her to a. reconciliation. He also stated that he want- *3 ed to boys. see his There had been con- dispute siderable between Arthelia and de- fendant on the right matter of his visit to the children. She was awarded their cus- tody by and, the terms ap- of the divorce parently, only not recognize refused to his. rights, visitation but refused even to dis- cuss the event,, matter with him. Phoenix, Pickrell, Atty. Gen., Robert W. on the evening question, he was deter- Green, Atty., County Norman E. Pima mined and, to see the according children to- Tucson, appellee. for his own testimony, prepared was take- to Alfred Rogers, Tucson, appellant. “desperate” measures. J. he home, When entered the Urbano he-
STRUCKMEYER, Justice. carried a blasting homemade con- device attempting Defendant was convicted sisting dynamite of of three sticks of and a explode dynamite battery-powered in a dwelling “detonating house box” or “det- terrify injure, with intent to intimidate or onator.” dynamite- Inserted in one of the being, human in violation of A.R.S an electrically sticks was activated detonat- following hy improperly insulated court refused the cap was which connected Ing instruction: two located to each terminals wires was also detonating hox. This box the plaintiff, you “If find that
n equipped and when both with two switches Arizona, destroyed, caused State of position the “on” .switches were destroyed, or to be de- to be allowed through provided a of current flow batteries stroyed contents any evidence whose cap, explode. The causing it to shock issue, infer quality or are in n turn, designed, to set this blast was against their in- true fact is n off dynamite. charge powerful the more terest.” from the start of the apparent It was house, he an alter- While was inside (1) charge were defenses and Ar- nation arose defendant between ac- dynamite cap discharged that the her and she holding thelia —he was arm static, electricity cidentally stray through n commenced During free. struggling get dynamite in such radio (2) scuffle, presence of the two in the Wil- exploded. a condition that it could not family, lits Urbano children and the injuries exploded. detonating cap Minor he ex- The defendant testified that had inconsequential to some of the children and had, perience dynamite; he some with furnishings damage to household certain before, dynamite and four months taken the however, not dynamite, resulted. did desert, standing buried it in a box (cid:127)explode. degree angle so that upright it at a 45 out; he nitroglycerine would drain subsequently Investigating who officers had previously had used n examined insulat- scene found that the kept storage under those conditions ed wires which connected detonator not proven had and that it that would ex- had been severed not did that he detonate. He also testified plosion. lengths and the The detonator the detonator the switches on throw n still to the terminals wire connected discharge was accidental. salvaged were and introduced into evidence explosive, Balk, witness, expert elec- package at the trial. The An Sheldon an' examina- engineer, trical testified from thereto, with turned the wires attached *4 possible that it was tion the detonator military at (cid:127)over to officials Davis-Monthan explode thus to short and for wires subsequently destroyed. Air Force and Base cap. if He also testified that detonating Sefend- latter action rise to gives system This un- was the electric the house dis- stray or electrical assignment grounded, a field single ant’s of error that place charge or a could have taken evidence; second, shock requested if the in- transmitting car that a near the house evidence, struction is anot comment on the output ignite with an of 25 watts could are there why other sufficient reasons expert cap. Another called who given. instruction should was not have been output established that of the radio Article Constitution of Ari- § police parked transmitter on the car near zona, 1960, A.R.S., requires as amended the house was 25 watts. that: Another, Charles, quarry A. Donald “Judges juries shall not charge with foreman, experienced handling respect fact, to matters of nor com- dynamite, type testified with this that thereon, ment but shall declare the igniter blasting precautions taken had to be law.” cap because there when the were times rejected judge defendant’s re- energy off without from the go quested instruction as a comment a mat- ignited 'by detonator and could be radio volition, saying: of fact of his own ter shock; frequencies, current, stray static and course, why going “Of I’m the reason exposed terminals wire without to refuse it I its a on the think comment static, stray susceptible insulation are evidence, can think the inference be I electricity and He testified radio. further pro- argued we in this but state from an of the examination detonator singling hibited evidence from out cap the chance of the detonator electric and—I’ve rule several violated accidentally ignited fifty-fifty. being nobody times made ob- because urges which Defendant jections to these instructions come destroyed and the wires attached to California, this, me, out but dynamite might defend- have aided the piece singling out one of evidence showing explosion ant in acci- do, can saying that what plain dental. It is thus that the defendant’s and it allows the Court much lee- too requested instruction to the inferences way to— n ” by drawn concerning the destruction light of his his key evidence was the of the is uncontradicted and comes entire defense. solely lips Cap- from the of one witness. officer,, Accordingly, appeal presents Pierson, here tain two Donald an ordnance questions first, did err member the trial court States Air Force sta- United — rejecting requested defendant’s tioned at Air Davis-Monthan Force Base- Tucson, for State, the reason that was on the comment at who tes- witness
189
The Arizona
possession
judicial
articles were
tified he took
originally
Washing
De-
taken from the
request of
.Tucson Police
State of
at the
pro
partment,
appeared
it
active and
ton. Under an identical constitutional
to he
Washington,
supreme
in
destroyed.
vision
their
court
he had it
He also testified:
repeatedly
held “The trial
court
not
*
* *
dy-
“Q
Captain,
to make
to the evi
forbidden
reference
pur-
have been saved for the
namite
dencej
only
but is
comment
to
forbidden
poses
analysis?
anof
Roberts,
381,
thereon.” State v.
144 Wash.
Yes,
“A
it
if—it could
could have
32,
“com
258 P.
and citations.
word
”***
been, yes.
have
ment” as
has the
used
the Constitution
expression
opin
usual connotation of an
of
that matters
It is well established
Webster’s,
ion. See
Third New Interna
established
fact
at a trial or
conceded
of
Dictionary.
tional
by
evi
uncontradicted or uncontroverted
court in an
assumed
dence
bemay
proper
a trial
it
not
for
While
constitu
violating
instruction without
particular
judge
single
to
out a
facet of the
Nat.
prohibition.
tional
v.
Bank
First
Wolff
charge
in his
exclu
case
to the
1077;
Winslow,
97,
P.2d
Reid
Ariz.
53
47
matters,
does not
sion
other
still this
Topper,
381,
397;
259
Porris
v.
Ariz.
P.
32
direct
mean that he is forbidden to
442,
State,
v.
Ariz.
1101.
If
30
247 P.
jurors’
properly
attention to all matters
assumed,
not
which we do
within the issues for their determination.
does,
it
and wires
that the
think
State,
Lacy
Ariz.
This
said
v.
38
Court
saved, it still would
be
could have been
not
65,
60, 64,
P.
297
872:
within the constitu
a comment on
facts
“Upon
the court
issue
prohibition
tional
because it is uncontra
evi-
hypothesized the
above instructions
they
dicted that
could have
saved.
de-
dence,
supporting
both
it,
denying
and declared
importance
fense and
It
is of
to the settled
words,
the court said:
law.
other
point
jurisdiction
be
law
that the
such
you
evidence that
find from the
‘If
clarified. The instruction does not assume
exists, the
is as
facts
law
says
state of
you
a fact.
It
Conditional
“if
find.”
follows,’
instruction, we
etc. Such an
such
statements embodied
instructions
explanation
believe,”
convinced,”
held,
or criti-
you
is not an
you
have
as
“if
“if
an assertion
commonly
“if
cism the evidence or
given
find” are
have
particular
assumption
knowledge
never
been considered
our
case,
does not violate section
prohibition.
the constitutional
violating
12,
6,
article
of the state
requests
Constitution.
Rule
instructions
State,
orally.
Pfeiffer
Ariz.
P.
made
The defendant
oppor-
had no
used,
tunity
orally
request
form of instruction
a modification had
us,
practical
only
seems to
is the
one in
the lower court
opinion
been of the
proposed
order
make an
understandable
simply
was deficient
applicable
clear declaration
of the law
because
lower court considered the in-
*6
facts,
universally
the
to
and one
em-
as a
struction
whole
a
erroneous as
com-
ployed.
apparent
It is not
to us that
ment on the
By
evidence.
an affirmance the
complained
the instructions
deprived
er-
defendant would now be
respects
They
opportunity
in
roneous
the
asserted.
to
fully
have his defense
sub-
do, indeed,
jury’s
jury.
direct the
attention
mitted to the
give
to the issue
and
of self-defense
upon
The State
the
seeks to affirm
‘aspect
promi-
of the case’ great
theory
the
instruction
refer
made no
nence,
under the
but such reference
specific
ence to
If
the
facts to be inferred.
only proper,
but to the
facts
not
instruction,
objection
this is
valid
a
to the
Indeed,
advantage of the defendant.
opinion
not,
we are
the
then cer
it is
grievous
he would have
com-
had
tainly
justice,
jury
in common
the
so that
plaint
if
or their
such instructions
fully
defense,
could
consider his
the de
equivalent
given.”
had not been
fendant should
to re
have been allowed
proposed
instruction is not
comment
quest
incorporating
an oral modification
the
on
evidence within the constitutional
specific
sought
the
facts
to be inferred.
prohibition.
suggested
is
It
urged
is
It
now
this
the
Court
in
instruction. An abstract
is an abstract
requested
faulty.
instruction is otherwise
issues
the
struction
one which broadens
think, first,
that it
unrealistic
We
thus
scope
beyond
predicate
ob
to
the decision on technical
impliedly
jury
to
issues
submits
presented
jections which were not made or
properly
See the
questions not
before it.
court
defendant
below and to which
Lopez, 185
Godvig
excellent discussion
v.
request a
did not have the
opportunity
301,
The Rules Procedure not of an of Criminal 165, Chenowth, 271, request 273, contemplate 71 Ariz. P.2d bar that technicalities 17, language: By in this for instructions. A.R.S. Criminal the facts with cer- ble at “Defendants contend tainty application to facts could No. be determined. 5 has no merely an abstract case and is this may jury conclude a That instruction is law. This statement of spoliation or fraudulent intent from the C.J.S., taken from 6 for word word fact which destruction of an article is a Battery, Defense Assault and Self § may be inferred from all the evidence. pg. it is a correct state- 813. While necessary in Such a deduction is not order application has no ment the law it that the inference as to the true party neither relied here because operate jury in the defendant’s favor. propositions of self defense. Abstract accept dyna explanation though correct are not law even dangerous mite keep and still believe Corp. Butane in Arizona. favored adequate that this was not an reason for its Kirby, 325.” Ariz. 187 P.2d light destruction of its relative im portance to the outcome of the case. Had bar, is not an abstract In the case at given, instruction been had direct relation instruction because it have been in position weighing con- vital and evidence case issues explanation and, they if believed it not fining jury to the true issues and not adequate, an inference unfavorable to the ones. diverting it to extraneous
prosecution could have been drawn. This in- permitting the rule an think that We in could create a reasonable doubt itself only the ference based notion that is not as to the guilt. defendant’s by a the destruction is motivated desire reasons, For the foregoing this case is Evidence, course, conceal of the truth. reversed and remanded for a trial. new may innocently destroyed without through simply fraudulent intent careless- LOCKWOOD, J., V. C. and BERN- or, might negligence ness or as the case STEIN, J., concurring. here, an unwill- appeared have to the ingness necessary to make the effort UDALL, (dissenting). Chief Justice event, preserve any the can- it. In State advantage expressed by own permitted not be the of its I dissent from the views opinion destroying might majority conduct the The evidence in this case. claim that modifi- oblique suggestions the defendant’s contains have substantiated may requested But the have regarding missing evidence. tions from recom- damage equally great the defendant is been in order. But aside specific longer mending incorporation of the facts because the evidence was no availa- inferred, is adopted by to be there no mention may the state of well been have conclude, only only desired. I can modifications a calculated effort to avoid haz- therefore, reading opinion inadequate from using storage as ards of facilities whole, charge under highly explosive county examination materials. The approved city is in haec verba. surely and justified officials were accepting experts the advice of their pro- Omitting verbiage, dynamite fully danger- active and ** you plaintiff vides : “If find ous to life and limb all came those who * ** destroyed evidence whose it, into contact with area even into the issue, may quality contents or are in kept. where it Captain And Donald against infer fact is their true Pierson, stating dynamite after It interest.” was uncontra- [the state’s] good active, condition testified dicted, readily by all acknowledged in fact follows: parties and in here at trial the briefs —both destroyed -—that the state had * * * “Q Captain, dyna- could the effect, therefore, in- wires. net pur- mite have saved for the jury: only struction have advised the poses analysis ? is the true infer
“[Y]ou * * * Yes, "A it could if—it have against interest.” state’s] [the been, yes. County,
have
propriety
an inference when
such
however,
City
nor
proper
have
circumstances in-
destruction occurs under
type .of
storage facilities for this
suppress
dicating a motive to
items,
types
thing, for these
beyond dispute.
Rem-
See United States v.
Air
re-
and in the
Force we
cert,
ington,
(2d
1951),
fying “may” carried hint word Nancy H. Charles DUNLAP Dunlap, S. inferences need not drawn. This wife, Appellees. his express statement insufficient. Without inferences, of the alternative to adverse No. 7746. tantamount to a di-
the instruction was Arizona, Supreme Court of acquittal. verdict of rected En Bane. give refusal to June no
There is doubt 1964. Rehearing Denied Oct. consti- instruction would properly framed counsel, Defense error. tute reversible
however, amend the attempt to made no argued point here.
charge and has not tactics is not to revise function
Our at- have we and never before
trial counsel purpose could have His
tempted to do so. ex- state’s mention of the avoid
been to all costs. There was
planation at by destroyed had danger- and was thus active
detonation jury’s than call
ous. Rather
attention, might have been counsel well own testi- on defendant’s
satisfied to rest reasons, elected he
mony. Whatever the requested. For
stand on in- stated, already consider I
reasons an inaccurate statement
struction rejected properly it was
law and believe judge.
I affirm.
JENNINGS, this dissent. J., concurs in