Eytinge v. Territory of Arizona

• Citation: 100 P. 443,12 Ariz. 131
• Decision Date: 20 March 1909
• Docket Number: Criminal 252
• Parties: LOUIS V. EYTINGE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

100 P. 443

12 Ariz. 131

LOUIS V. EYTINGE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 252

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent Judge. Affirmed.

STATEMENT OF THE CASE.

The appellant was indicted by the grand jury of Maricopa County on the twenty-third day of April, 1907. This indictment charges him with murder in the first degree and is in two counts, each of which charges the appellant with the murder of John Leitch on or about the seventeenth day of March 1907. The first count charges that the appellant unlawfully feloniously and with malice aforethought gave and administered chloroform and certain other poison, to the grand jury unknown, to John Leitch with the unlawful intent to kill him. The second count charges that appellant unlawfully, feloniously and with premeditated and deliberate malice aforethought killed and murdered John Leitch by some way and manner and by some instrument and weapon and by some poison to the grand jury unknown. The indictment is substantially the formula adopted in Westmoreland v United States, 155 U.S. 545, 15 S.Ct. 243, 39 L.Ed. 255, and Edmonds v. State, 34 Ark. 720. The questions involved are as follows: The denial of an application for a continuance made on behalf of defendant; errors in the selection of jurors; errors in the admission and rejection of testimony; errors in giving and refusing instructions to the jury and failure of the evidence to establish the corpus delicti.

A. C. Baker, and Alfred Franklin, for Appellant.

The denial of the application for a continuance and forcing the applicant to trial under the circumstances in this case set out deprived him of a great right. Claxton v. Commonwealth (Ky.), 30 S.W. 998; Ryder v. States, 100 Ga. 528, 62 Am. St. Rep. 334, 28 S.E. 246, 38 L.R.A. 721. The court erred in the selection of jurors. It was incumbent upon the prosecution to prove that the death of the deceased was caused by poison administered by the appellant. It is not necessary to disqualify a juror that he should have a judgment or opinion upon a consideration of all the circumstances involved in the case. It is sufficient for his disqualification that his obnoxious opinion attaches to any one material fact involved. Thompson and Merriman on Juries, sec. 217; Stewart v. State, 13 Ark. 720; Davis v. Walker, 60 Ill. 452; Watson v. Whitner, 23 Cal. 376; People v. Carsoy, 57 Cal. 102; State v. Mann, 83 Mo. 589; Donovan v. People, 139 Ill. 418; Bayse v. State, 45 Neb. 261, 63 N.W. 811.

Experiments before a jury are often allowed in both civil and criminal cases, but on account of the misconception and error liable to occur from their use, it is essential that the circumstances and conditions be similar as those which the experiment is designed to illustrate. Chicago etc. R.R. Co. v. Champion, 9 Ind.App. 510, 53 Am. St. Rep. 357, 36 N.E. 221, 37 N.E. 21; 12 Am. & Eng. Ency. of Law, 406. If the conditions are dissimilar, evidence of experiments are inadmissible. Tesney v. State, 77 Ala. 33; Commonwealth v. Piper, 120 Mass. 185.

In all those cases where they are admissible, the experiments must be made with the same means. State v. Justus, 11 Or. 178, 50 Am. Rep. 470, 8 P. 337; Petteway v. State, 36 Tex.Crim. 97, 35 S.W. 646. Where deceased's skull was broken with a poker, experiment with a similar poker but a different skull, to show facility, etc., was rejected. Commonwealth v. Twitchell, 1 Brewst. 566.

"All murder, which is perpetrated by means of poison or lying in wait or by any other kind of willful, deliberate and premeditated killing or which is committed in the perpetration of or an attempt to perpetrate arson, rape, robbery, burglary or mayhem is murder of the first degree and all other kinds of murder are murder of the second degree." Pen. Code, sec. 173. The point of the matter is this, whether or not there was malice aforethought or premeditation and deliberation in either one of the instances becomes a question of fact and not a presumption of law. In State v. Phinney, 13 Idaho 307, 89 P. 634, the court also added: "The jury might conclude that the death was caused by means of poison and yet be satisfied that it was without malice aforethought." People v. Milton, 145 Cal. 169, 78 P. 549; 21 Ency. of Law, 167; State v. Phinney, 13 Idaho 307, 89 P. 634, 12 L.R.A., N.S., 935; McClain on Criminal Law, sec. 359; State v. King, 24 Utah 482, 91 Am. St. Rep. 808, 68 P. 418; State v. Daly, 210 Mo. 664, 109 S.W. 53.

It is unquestionably true that proof of the prisoner's guilt of another crime than that for which he is being tried cannot be put in evidence unless it be in exceptional cases, to show scienter or animo, or a connected plan or scheme. 1 Greenleaf on Evidence, 4th ed., sec. 52; Kerr on Homicide, sec. 469; Hawes v. People, 129 Ill. 521, 16 Am. St. Rep. 283, 21 N.E. 777, 4 L.R.A. 582; 12 Cyc. 405; People v. Molineaux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193.

The jury are the judges of the facts and must be left to weigh the evidence without any rules from the court, which will compel them to indulge a presumption of fact whether under all the circumstances they think they ought to indulge it or not. Allison v. State, 42 Ind. 354; Stone v. Geyser Quicksilver Min. Co., 52 Cal. 315, 1 Morr. Min. Rep. 59.

E. S. Clark, Attorney General, for the Territory.

The matter of granting or denying a motion for continuance is wholly discretionary. Halderman v. Territory, 7 Ariz. 120, 60 Am. St. Rep. 876, and cases cited.

The court was right in sustaining an objection to the question "Have you now any belief or opinion as to whether John Leicht was killed." The opinion of the juror in order to disqualify him must be upon the merits, that is, whether the prisoner is guilty or not guilty of the offense charged, and not upon some one particular fact or feature of the case; thus, in cases of homicide, it has been held that a juror who has formed the opinion that the defendant did the killing is not incompetent if he has not formed an opinion as to whether the defendant was guilty or innocent of crime in the act of killing. State v. Thompson, 9 Iowa, 190; Lowenberg v. People, 27 N.Y. 342; State v. Sorter, 52 Kan. 531, 34 P. 1036; Cargen v. People, 39 Mich. 549; State v. Weems, 96 Iowa 426, 65 N.W. 387.

"If the crime is perpetrated by means of poison, knowingly and feloniously administered, it will be murder in the first degree, and premeditation and deliberation will be presumed, and these elements of the crime of murder need not be proved; and it is the established law that to commit murder by means of poison is a deliberate act, necessarily implying malice." State v. Wells, 61 Iowa 629, 47 Am. Rep. 822, 17 N.W. 90; State v. Thomas, 135 Iowa 717, 109 N.W. 900; State v. Van Tassell, 103 Iowa 6, 72 N.W. 497; State v. Bertoch, 112 Iowa 195, 83 N.W. 967.

OPINION

NAVE, J.

-- The appellant was convicted of murder in the first degree, and has appealed from the judgment and sentence upon such conviction. Of the several assignments of error but three require our consideration.

1. Prior to his trial appellant applied for a continuance; his application being supported by the affidavit of his two attorneys "that they have been informed and verily believe" several different facts which would have a tendency to prove the defendant to be insane; likewise, "that they have been informed and verily believe" that several physicians in Ohio, giving their names and addresses, will testify to these facts, and testify that appellant is insane and has been insane for several years, and that a continuance is necessary for the purpose of obtaining the testimony of these witnesses. A continuance was refused. The granting or withholding of a continuance rests in the sound discretion of the trial court. Its action in refusing it will not be the basis for a reversal of the judgment unless it is manifest that the discretion has been abused. Elias v. Territory, 9 Ariz. 1, 76 P. 605; Halderman v. Territory, 7 Ariz. 126, 60 P. 876; Territory v. Dooley, 3 Ariz. 60, 78 P. 138; Territory v. Barth, 2 Ariz. 322, 15 P. 673. It cannot with propriety be held to be an abuse of discretion to deny a continuance where all of the material facts upon the basis of which the continuance is sought are averred upon information and belief without setting forth the source of the information. To demand consideration in any judicial proceeding, an affidavit must be traversable, and thereby must lay the foundation for a charge of perjury if false. The affidavit in this case was deficient in this essential. Comstock v. Nebraska, 14 Neb. 205, 15 N.W. 355; People v. Francis, 38 Cal. 183; State v. Wilson, 9 Wash. 218, 37 P. 424; State v. Carroll, 13 N.D. 383, 101 N.W. 317; Turner v. Commonwealth, 25 Ky. Law Rep. 2161, 80 S.W. 197; State v. Crane, 202 Mo. 54, 100 S.W. 422; Bradley v. State, 128 Ga. 120, 57 S.E. 237; Brown v. State, 23 Tex. 195.

2. Upon the examination of the jurors upon their voir dire, the court sustained objections made by the territory to the following question asked of several of them: "Have you any belief now as to whether John Leitch [with whose murder appellant was charged] was killed or not?" This question, directed to elicit the jurors' opinion as to an isolated feature of the case, not being aimed directly at the state of their minds with reference to the defendant's guilt, would tend only remotely to lay a foundation for challenges for cause. Wherefore the refusal to permit the question to be answered could not operate to deprive the appellant of his privilege of laying a foundation for a challenge for cause by questions, more closely...