Campbell v. Territory of Arizona

• Decision Date: 25 June 1912
• Docket Number: Criminal 310
• Citation: 14 Ariz. 109,125 P. 717
• Parties: WILLIAM CAMPBELL, Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

125 P. 717

14 Ariz. 109

WILLIAM CAMPBELL, Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 310

Supreme Court of Arizona

June 25, 1912

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe Judge. Affirmed.

The facts are stated in the opinion.

Mr Leroy Anderson and Mr. Richard Lamson, for Appellant.

Mr. G P. Bullard, Attorney General, for Respondent.

OPINION

FRANKLIN, C. J.

This was an indictment for murder. There was a conviction of murder in the first degree with the death penalty affixed. Defendant appeals.

This melancholy tragedy was enacted in Prescott on the ninth day of May, 1911, and from the circumstances surrounding the case, as disclosed by the evidence, it is marked as one of peculiar atrocity. On the day of the homicide, Ernest Presti, otherwise known as Kid Kirby, about 3 o'clock in the afternoon, was walking leisurely along the sidewalk on Montezuma street, going north on his way to the post office. On his way Presti had stopped at the store of a merchant about the purchase of some clothing. Presti was observed walking along the street leisurely, looking forward, and presently the defendant, Campbell, was seen going in the direction of Presti on the run with a pistol in his hand; Presti being ahead of him quite a distance. When the defendant got within about thirty feet of Presti and unobserved by him, the defendant fired a shot at Presti which took effect in his back. At the first shot Presti screamed, and ran about thirty feet, and the defendant, still following fired a second shot from his pistol, and thereupon Presti fell mortally wounded. The defendant then walked up to where Presti lay, and, as one of the witnesses stated, "as though he was going to shoot him lying down." The defendant kept following Presti until he fell in the street, being then about fifteen feet behind Presti, and still holding his pistol in readiness for further use. During all this time, according to the testimony for the prosecution, not a word had been uttered by Campbell or Presti, except Presti's exclamation at the first shot. When Presti fell, the defendant stopped and waited until he had tried to raise himself up and sink back, when he turned, and went down the street in the direction whence he came. Presti was unarmed. A crowd had collected by this time, and the defendant, leaving the prostrate form of his victim, crossed over the street on to the plaza, the people following him with indications of indignation for his act, when the defendant flourished his pistol as if to intimidate the crowd. A deputy sheriff thereupon covered the defendant with a weapon, and, disarming him, placed the defendant under arrest. Shortly after falling mortally wounded in the street, Presti was carried onto the plaza, where he died.

The defendant, being a witness, gave his version of the affair as follows: "I went back to my room on Granite street, and from there back uptown on Montezuma street. I saw Kirby when I got near Birch Brothers saloon. I saw him going down the street ahead of me. This was between 2 and 3 o'clock. I ran down to him, right to him, and we were right in front of Levy's store when I says to him. 'Kid Kirby, you have been running me long enough. Now it is time for you to run.' And he said, 'Cut that out.' He happened to see my pistol, and he started to run and I shot him. I won't say whether I shot twice, three times, or what. After that I came across the street and over here to the jail." It further appears from the testimony, so far as it was permitted to be introduced, that there was considerable ill-feeling between the defendant and Presti, and that they had some difficulty or altercation on and previous to the day of the homicide. Witnesses for the prosecution testified that on the morning of the homicide the defendant had stated that he would lay for Kid Kirby and fix him when he went up the street. The autopsy disclosed that the fatal bullet entered the back of the deceased just below the right shoulder blade, and was such a wound as would usually cause instant death.

The defendant attempted to introduce testimony of previous transactions, relations, and difficulties between himself and the deceased, and his mental condition at the time of the homicide. Except in a few particulars, the court restricted this character of proof to the circumstances surrounding the transaction at the time of the killing on the ground that it was no part of the res gestae, no self-defense appeared from the evidence, and the insanity of the defendant was expressly disclaimed. The foregoing salient facts in evidence have been recited as material to a clear understanding of the errors assigned.

The legal questions involved are presented in assignments of error; as follows:

1. The trial court erred in refusing to admit testimony of the transactions between the defendant and the deceased happening on the same or previous day to the killing.

2. That the trial court erred in arbitrarily limiting the res gestae to the particular spot where the killing occurred.

3. That the trial court erred in instructing the jury with reference to murder of the first degree that there must be no circumstances of mitigation, justification or excuse and in not instructing the jury that the absence of the same circumstances characterizes second degree murder.

4. The trial court erred in sustaining objections to evidence offered by defendant as to his mental condition at the time of the killing. The trial court erred in refusing to admit evidence of the previous relations of the defendant and the deceased and of the difficulties occurring between the two on the same and the previous days to the killing, and in refusing to admit evidence of these relations and difficulties and the facts and circumstances relating thereto for the purpose of mitigation, justification, extenuation or excuse, and in excluding all of such evidence, and in ruling that such evidence is admissible only on the theory of self-defense.

There is and can be no pretense that the facts of the present case bring it within any of the rules which govern the exercise of the right of self-defense. At the time of the homicide the accused was the sole aggressor. He was in no danger from the deceased, and could have had no apprehension of any danger. He sought out and followed up the deceased to effect his destruction. There was no necessity for any encounter, and none occurred. The defendant armed himself with a pistol, and watched his opportunity. Then, unobserved by the deceased, pursued him along the street for more than a city block, and still unobserved, mortally wounded him by a shot in the back. The deceased had no opportunity to defend himself, or to make good his retreat. No knowledge of his impending danger, no thought that his enemy was following him up to encompass his destruction, and, if he had any consciousness of the matter at all, it was only the momentary but bitter reflection that his enemy had accomplished his destruction. Under such a state of facts, there is no provocation which the law in this state will recognize to extenuate or reduce the degree of the crime. The attending circumstances surrounding the commission of the homicide gave it the character of a willful, deliberate and premeditated murder, a murder committed upon express malice, and such is murder in the first degree in this state. There was, indeed, nothing attending or giving character to the act which the law regards as a matter of justification, excuse or mitigation.

Where there is a claim supported by some evidence of self-defense where the proof justifies the giving of a charge on the law of self-defense, defendant may, for the purpose of showing deceased to have been the aggressor, and the killing to have been necessary in self-defense, show hostile feelings on the part of the deceased toward him, previous difficulties, quarrels, and the like. But, where the law of self-defense is not in the case, evidence of the hostile feelings, or acts of the deceased, or of previous quarrels, is irrelevant and inadmissible on the part of the defendant. 21 Cyc. 962. Where self-defense is in the case, such evidence is admissible, not to excuse or justify an unlawful attack or killing, but for the purpose of throwing light upon the conduct of the deceased at the time of the encounter, and as affecting the reasonableness of defendant's own conduct, and where there is a conflict in the evidence as to who was the aggressor, as pending to show who was the aggressor. There was not an act done or a word spoken which, at the time of the tragedy, and illustrated by the character of the deceased, and the previous relations and difficulties of the parties, and construed by the defendant in the light of that character, as would in law be such a provocation sufficient to mitigate the offense to a lower degree. The evidence offered could not be on the ground that it would constitute what the law deems a sufficient provocation to extenuate the...