Douglass v. State, Criminal 802

• Citation: 44 Ariz. 84,33 P.2d 985
• Decision Date: 25 June 1934
• Docket Number: Criminal 802
• Parties: LOUIS SPRAGUE DOUGLASS, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

33 P.2d 985

44 Ariz. 84

LOUIS SPRAGUE DOUGLASS, Appellant, v. STATE, Respondent

Criminal No. 802

Supreme Court of Arizona

June 25, 1934

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.

Mr William H. Westover and Mr. Bernard T. Caine, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. John Francis Connor, Assistant Attorney General, and Mr. Glenn Copple County Attorney, for the State.

OPINION

LOCKWOOD, J.

This is an appeal by Louis Sprague Douglass from a judgment of the superior court of Yuma county, dated October 3, 1933, which sentenced him to death by hanging, on the verdict of a jury finding him guilty of murder in the first degree and fixing the penalty of death.

The following facts regarding the case are undisputed: Defendant at the time of the trial was forty-seven years of age. Some time during the month of January, 1933, he, together with two other parties by the name of Doughty and O'Connell, left New York City for Arizona, arriving some time later at the Jack Hayden ranch in northern Yuma county. Upon their arrival they found Hayden living in his house and Ralph Hart, and elderly prospector, living close by in a tent. With Hayden's permission they made camp under a near-by tree and for two weeks or more the visitors spent their time hunting and examining the Good Hope Mine, a property located in the immediate vicinity. On the 7th of February, 1933, defendant went out hunting, and upon his return found Hayden in front of his house and shot him. Hart at the time was in his tent near by and defendant called his two associates, who were at their camp, and directed them to carry Hayden's body into the house. After doing this, all three returned to their camp, where a discussion arose as to what should be done in regard to Hart. Finally it was agreed that Hart should be called out of his tent and tied up, and the three went to the tent for that purpose; but upon Hart's appearing, for some reason Doughty and O'Connell walked away, leaving defendant and Hart together, and a few minutes later defendant shot and killed Hart. It was his claim at the trial that both killings were done in self-defense. After the shooting, the bodies of Hart and Hayden were buried in the sand and defendant and his associates, without notifying anyone of the double tragedy, departed immediately for New York City. Shortly thereafter the bodies were discovered, and by various means the three were apprehended and brought back to Yuma county and jointly informed against for the murder of Hart. While in the county jail at Yuma county the three defendants, being separated, began writing notes one to the other, which were delivered by a trusty. This was discovered by the county attorney, and from that time on the notes were photographed without the knowledge of the prisoners and the originals were then delivered to the parties to whom they were addressed. A severance was later granted, and we are considering the trial of Douglass alone.

There are other matters of evidence which we shall refer to from time to time in the discussion of the twelve assignments of error.

The first assignment is that the court erred in overruling a challenge for cause to the juror Charles H. Curtis, upon his examination on voir dire. We have examined carefully the entire proceedings in regard to this juror and are satisfied that the allowance of the challenge was within the discretion of the court. While it would not have been an abuse of that discretion to allow the challenge, neither can we say that it was an abuse to refuse it. It appears from the examination that the juror had heard the matter of the killing discussed more or less and had been present at the proceedings held by the coroner's jury. On the other hand, he stated emphatically and explicitly that he had no fixed opinion in regard to the matter and would be guided only by the evidence which appeared upon the trial, and that he felt he could sit as a fair and impartial juror in every respect. One of the leading cases upon the qualifications of trial jurors is that of Holt v. People, 13 Mich. 224. In considering the proposition so often heard that the mind of the juror should be like a "blank sheet of paper" when he takes his place in the box, Judge COOLEY said in that case:

"It is secondly said that, in order to be qualified, a juror must come to the case with a mind entirely unimpressed with any opinion in respect to the guilt or innocence of the accused; and we are asked whether the existence of an opinion, to any degree, is consistent with the fairness and impartiality which the law demands in a juror.

"We find nothing in the authorities, nor are we able to discover any reason, favoring the rule thus indicated. To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely without information concerning them, would be, in many cases, to exclude every man from the panel who was fit to sit there. With the present means of information, the facts or rumors concerning an atrocious crime are, in a very few hours, or days at the farthest, spread before every man of reading and intelligence within the district from which jurors are to be drawn -- and over the whole country, if the atrocity be especially great. And there are some crimes so great and striking, that even the most ignorant will have information and impressions in regard to them; and the rule, as stated, applied to such cases, would render the impaneling of a jury for their trial impossible, and make their very enormity a complete protection from punishment."

We have considered the same question in the case of Burnett v. State, 34 Ariz. 129, 268 P. 611, and have held, under circumstances much stronger in favor of the allowance of the challenge than those shown in the present case, that the trial court did not abuse its discretion in refusing to grant it.

We consider together the second and fourth assignments of error, which deal with the admission of evidence relative to the alleged murder of Hayden by defendant, the condition of his body when it was found, the place where it was buried, and the examination of the body made by Dr. H. A. Reese, from which the latter testified as to the manner and cause of death. Defendant was informed against for the murder of Hart, and it is urged that the evidence in regard to the death of Hayden referred to a distinct and unconnected crime, and that it is therefore irrelevant and inadmissible. It is of course the general rule of law that evidence which shows the accused has committed another crime wholly independent of that for which he is on trial should not be admitted. Greve v. State, 36 Ariz. 325 285 P. 274; Comancho v. State, 39 Ariz. 556, 8 P.2d 772. There are, however, certain exceptions, to this rule. We have had these exceptions under consideration many times and have stated that where evidence tends to establish (1) a motive for the crime for which defendant is on trial, (2) his intent, (3) the absence of mistake or accident, (4) a common scheme or plan, and (5) the identity of the person charged with the commission of the crime on trial, it is admissible, notwithstanding it also shows another crime. Crowell v. State, 15 Ariz. 66, 136 P. 279; Vigil v. State, 33 Ariz. 51, 262 P. 14; Holder v. State, 31 Ariz. 357, 253 P. 629; Lawrence v. State, 29 Ariz. 247, 240 P. 863. In this case the defendant had previously to and at the trial admitted the killing of both Hayden and Hart, but contended that each was done in necessary self-defense. The question of self-defense was therefore one of the vital issues at the trial, and we think the previous killing, so closely connected in time and place with that for which the defendant was on trial, the condition of Hayden's body, the place and manner in which it was buried, and the manner and cause of his death, the doctor testifying that he was killed by a shot in the back of the head, all had a very material bearing upon the question of whether defendant's motive for killing Hart was self-defense or whether, as contended by the state, it was done in the attempt to conceal another brutal and cowardly murder. We conclude that the trial court properly admitted the evidence in regard to the Hayden killing.

This same ruling goes to assignment No. 3, which discusses the testimony of Dr. Reese in regard to the cause of Hayden's death. The substance of this testimony was that he was killed by being shot in the back of the head, a matter certainly very material upon the question as to whether the killing was done in self-defense and therefore something which Douglass would have had no cause for concealing, or whether it was a deliberate murder, in which case he would have the strongest motive for killing Hart in order to cover up the first crime.

The fifth assignment of error is that the court refused to permit one of the defendant's witnesses to testify in regard to certain uncommunicated threats alleged to have been made by Hayden against defendant. Where the issue is self-defense, communicated threats are always admissible in evidence. Sparks v. State, 19 Ariz. 455 171 P. 1182; Stokes v. Territory, 14 Ariz. 242, 127 P. 742. And if there is a question as to which of two parties was the aggressor in an affray which resulted in a killing, uncommunicated threats are also generally held to be admissible. Wiggins v. Utah, 93 U.S. 465, 23 L.Ed. 941. But these cases always refer to threats made against a defendant by the person for whose killing he is being tried, and in this case the alleged threats were made by a third party. We know of no case where such threats are held to be...