62 P. 693 | Ariz. | 1900
The appellant, Joseph Tamborino, was tried in the district court of Yavapai County for the crime of "assault with intent to commit murder,” alleged to have been committed on the eighth day of May, 1899, upon the person of one Ed. A. Tovrea, and was found guilty of "assault with a deadly weapon. ’ ’ The evidence for the prosecution tended to prove: That on the night of the 8th of May, 1899, the prosecuting witness, Tovrea, was sitting in a wine or card room in the rear of the Red Light Saloon, in the town of Jerome, with Lillie Lindsley and Rose Worth. That the Red Light Saloon was kept by Stella Carroll; and that the appellant, Tamborino, about 11:30 o’clock at night, went into the barroom of the saloon, and, being very friendly with the proprietress, Stella Carroll, she and he, after having first obtained permission of the Tovrea party, passed from the barroom into the room where the Tovrea party was sitting, and joined them in drinks. That, after the lapse of half an hour or such a matter, Tamborino, without any apparent provocation, pulled his .gun from his bosom or waist, and, with an oath, said he would kill Tovrea. That Tovrea, to preserve his life, quickly sprang to Tamborino, and grappled with him, and a struggle ensued for the possession of the gun. In the struggle the gun was discharged, the charge hitting no one, but passing into the. floor. When Tovrea and Tamborino first clinched, they fell against a mirror in the front of an upright bed and broke it. The girls ran from the room. An officer ran in and separated the men, taking the gun from the hands of both of them. The evidence upon the part of the defendant was not different from that of the prosecution up to the time of the beginning of the struggle between the two men. The defendant’s evidence tended to show that the struggle was commenced by Tovrea, and that Tamborino pulled his gun after Tovrea had clinched him, thrown him down, and was chewing his finger, and that Tamborino pulled the gun solely in self-defense. The evidence offered by the prosecu
There could have been no error in permitting the district attorney to cross-examine Stella Carroll as to all that she. said about the transaction, either at the time it happened or after-wards, inconsistent with or tending to contradict her evidence. Her evidence tended to lead to the conclusion that she had seen nothing more than she narrated on her main examination, and it would be the right of the prosecution to examine her, if she did not make statements which would show she had seen and heard more than she related. It would be. his right to test that question, and obtain from her on cross-examination all that she saw and heard. If the district attorney could be permitted to rebut the statements of Stella Carroll that she had not said the things imputed to her, it then would be his duty to lay the ground for an impeachment by such cross-examination. So the whole question comes as to whether those statements were material or immaterial. If such statements were immaterial, the district attorney would be bound by the answers made by the witness on cross-examination. If they were material to the issue being tried, he. would have a right to show that she had made such statements, after she had either denied making them, or had said that she had no recollection of making them, and did not remember. Proof of contradictory statements made by a witness may be introduced in evidence to impeach the witness after he has answered that he does not remember whether he made the contradictory statements or not. He cannot, by answering that he has no recollection of having made the former statements imputed to him, defeat the right of the impeaching party to prove that he did make such statements. It seems to this court that the impeaching evidence and the expression, “Tamborino has shot the butcher,” or “Tamborino has killed the butcher,” taken in connection with the evidence which the witness Stella Carroll gave on her direct examination, and with her hasty departure from the room at the outbreak of the difficulty, makes it quite material. The question to be solved was not whether in fact Tamborino had shot Tovrea, nor whether in fact Tovrea had shot Tamborino, nor whether,
Davis, J., concurs.
Doan, J., dissents.