Azbill v. State

• Decision Date: 08 May 1918
• Docket Number: Criminal 422
• Citation: 19 Ariz. 499,172 P. 658
• Parties: WILLIS AZBILL and HENRY AZBILL, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

172 P. 658

19 Ariz. 499

WILLIS AZBILL and HENRY AZBILL, Appellants, v. STATE, Respondent

Criminal No. 422

Supreme Court of Arizona

May 8, 1918

APPEAL from a judgment of the Superior Court of the county of Coconino. F. W. Perkins, Judge. Affirmed.

Mr. F Louis Zimmerman, for Appellants.

Mr Wiley E. Jones, Attorney General, Mr. R. W. Kramer, Mr. Geo W. Harben and Mr. L. B. Whitney, Assistant Attorneys General and Mr. C. B. Wilson, County Attorney, for the State.

OPINION

ROSS, J.

The appellants assign as error the order overruling the demurrer to the information, for the reason it does not set forth the means or instrument used in inflicting the mortal blow, and does not describe the wounds. Whatever the rule in this regard may be in other jurisdictions, it is at rest here. The indictment or information is not bad in failing to describe the means employed to effect death, or in failing to describe the wounds causing death. Molina v. Territory, 12 Ariz. 14, 95 P. 102; People v. Suesser, 142 Cal. 354, 75 P. 1093. We early adopted the California criminal procedure and the construction placed thereon by that state's courts.

It is said the corpus delicti was not established; that it was not shown by the evidence that Henry O. Thomas, whom the appellants are charged with murdering, is dead, or that the human carcass found was identified as his remains, or, if identified, that death was caused by the criminal action of appellants. The evidence denies and puts to rout all of the propositions contained in this contention. Unerringly, it confirms the death of Henry O. Thomas, finds and identifies his dead body, and points the finger of guilt to the appellants. A recitation of the many facts and circumstances surrounding and enveloping the appellants, as a stone wall, would serve no useful purpose, and we will not, therefore, keep them alive in this opinion.

It is next contended that the court erred in permitting a nonexpert witness to give his opinion as to the age of the deceased from the appearance of the flesh and bones found. It is only necessary to state that this testimony was drawn from the witness upon cross-examination by the appellants.

Error is also assigned because it is said another witness, without proper qualification as an expert, was permitted to express his opinion as to the age of the deceased from an inspection of the remains. When the body was found, the flesh had been almost completely denuded from the waistline up, and was in an advanced state of decomposition from the waistline down; this difference being occasioned by reason of the fact that the lower parts of the body were under water, while the upper part was not. The witness, an undertaker of 15 years' experience in the business, in answer to the question whether he could tell from the appearance of the body, its age, said:

"I don't know that I could be considered an expert, but from the nature of the bones and the form of the body, etc., I should judge it was a young man."

After the answer, an objection was made, but no motion to strike. The answer was properly permitted to stand for at least two reasons: First, because the objection came too late, and no motion was made to strike and second the uncontroverted evidence was that the body was that of a man from 20 to 25 years old.

The appellants complain of...