Collins v. State

• Decision Date: 23 December 1930
• Docket Number: Criminal 729
• Citation: 37 Ariz. 353,294 P. 625
• Parties: LEONARD COLLINS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

294 P. 625

37 Ariz. 353

LEONARD COLLINS, Appellant, v. STATE, Respondent

Criminal No. 729

Supreme Court of Arizona

December 23, 1930

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Judgment affirmed.

Mr. W F. Timmons and Mr. J. Fred Hoover, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon Assistant Attorney General, and Mr. H. H. Baker, County Attorney, for the State.

OPINION

ROSS, J.

By information, the county attorney accused defendant and one Charles Antone of the crime of murder, the offense being described as follows:

"The said Charles Antone and Leonard Collins on or about the 20th day of Oct. 1929, and before the filing of this information, at, and in the county of Yuma, State of Arizona, did then and there, wilfully, unlawfully, feloniously, deliberately and with premeditation and malice aforethought, kill and murder one Henry Cornell, a human being. . . ."

Defendant Collins demanded a severance, and was tried alone. From a verdict and sentence of manslaughter, he prosecutes this appeal.

He first claims that the information is insufficient, in that it fails to state the means employed by defendant to kill and murder deceased, or the kind and character of the wounds inflicted, or that the wounds were mortal.

"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." Azbill v. State, 19 Ariz. 499, 172 P. 658, 659. See, also, Marquez v. Territory, 13 Ariz. 135, 108 P. 258.

Defendant contends the corpus delicti was not proved.

"In felonious homicide the corpus delicti consists of two elements: First, the fact of death, as the result; second, facts and circumstances showing the criminal agency of the person charged with the crime, as the means." Edwards v. Territory, 8 Ariz. 342, 76 P. 458, 460.

The evidence on this point is as follows: Defendant Collins, Charles Antone and the deceased, Henry Cornell, Yuma Indians, came together on the streets of the city of Yuma some time in the forenoon of October 19, 1929. Before Collins joined the other two, the latter had been drinking denatured alcohol, had consumed perhaps a half bottle. After Collins joined the defendant and Antone, the three of them drank about two and one-half bottles of the stuff. (The capacity of these bottles is not shown by the evidence.) The place selected by them for their carousal was an isolated spot on a slough of the Colorado River, well shielded from view by rank growth of weeds and willows. It was not far from the Southern Pacific depot, 150 to 200 yards east. All was well and peaceful during the time (some four hours) it took to consume the liquor. What then happened the defendant and Antone disagree on. Defendant says deceased started to sing and requested him to sing; that he told deceased he could not sing, never did sing; that deceased kept on singing; that he told him he was making too much noise and they would be arrested; that he then moved away from his companions to a shady place and sat down; that after that Antone criticized deceased's singing, telling him he did not know how to sing; that deceased said to Antone, "If you know how to sing, why don't you sing?"; that they, Antone and Collins, started to fight; that the former picked up a stick and struck deceased on the head, knocking him down, and struck him two times after he had fallen; that defendant then grabbed Antone and nothing else happened.

Antone's version is that he and deceased were singing a song, an Indian song, and defendant said, "Keep quiet"; that they kept on singing; that defendant knocked him into the water, and then ran after a stick and with it hit deceased twice.

Witness Marcus Pacho, who was working for the Southern Pacific, testified that a few minutes after 3 P.M. he saw defendant and Antone coming from the direction of the place where deceased was found; that just before he saw them he heard crying and hollering, then groans and moans in the locality from whence they came; that he heard hitting, "like hitting a tree, or a human, or anything." This witness and two other persons then went to the place whence the noises had come, and found deceased lying in the mud, wounds all over his face and head, and entire left scalp torn away and cut into small pieces.

In the face of this testimony, we think there is little to the claim of defendant that the corpus delicti was not proved. There can be no question that deceased died a violent death at the hands of one or both of his companions. Whether his death was the result of the acts of defendant was, under the evidence, a question for the jury.

At the close of the case, defendant made a motion for an instructed verdict on the ground of fatal variance between the allegations of the information and the evidence, in that the information alleged that Henry Cornell died instantly, in Yuma county, Arizona, and the evidence showed that he died, some eleven hours after he was injured, in Imperial county, California. Our statute on the subject of jurisdiction in homicide cases, when the injury and the death are not in the same county or state, answers defendant's contention. It is as follows:

"The jurisdiction of a criminal action for . . . murder or manslaughter, when the injury which caused the death was inflicted in one county, and the party injured dies in another county or out of the state, [is] in the county where the injury was inflicted. . . . " Section 4924, Rev. Code 1928.

Whatever the rule at common law or in other jurisdictions, the above statute controls here.

Error is assigned upon the court's refusal to permit defendant to prove statements made by deceased while in the hospital, some two hours after his injury. It is contended that such statements were admissible upon two grounds: (1) As a dying declaration, and (2) as part of the res gestae.

Dying declarations are taken out of the hearsay rule on the theory that a person in extremis speaks under the same solemn obligation as one testifying under the sanctity of an oath. It...