Foster v. State, Criminal 708

• Decision Date: 15 December 1930
• Docket Number: Criminal 708
• Citation: 37 Ariz. 281,294 P. 268
• Parties: CHARLES R. FOSTER, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

294 P. 268

37 Ariz. 281

CHARLES R. FOSTER, Appellant, v. STATE, Respondent

Criminal No. 708

Supreme Court of Arizona

December 15, 1930

APPEAL from a judgment of the Superior Court of the County of Cochise. Albert M. Sames, Judge. Judgment affirmed.

Mr Alexander Murry and Mr. Frank E. Thomas, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon and Mr Lloyd J. Andrews, Assistant Attorneys General, and Mr. James T. Gentry, County Attorney, for the State.

OPINION

ROSS, J.

The defendant, Charles R. Foster, upon a charge of murdering on February 16, 1929, one Martin Parko in Cochise county, was by the verdict of a jury of that county, found guilty and condemned to suffer death. From the verdict and the judgment and sentence of the court pronounced in accordance with the verdict, he has appealed.

While every material issue of the information filed against defendant was of course traversed by the plea of not guilty, the only issue upon which defendant offered any evidence was that of his sanity. He undertook to show that he was not guilty by reason of his insanity. We state the defendant's theory of his defense upon the trial because it is important in the consideration of his various assignments of error. We think we should state that he was defended by two members of the bar experienced and learned in the law, and that the trial record discloses they manifested their usual interest and skill in his behalf.

Before taking up the reasons given by defendant for his appeal, we outline the salient facts immediately surrounding the finding of the body of the deceased, the circumstances pointing to defendant as the party committing the homicide, and also defendant's explanation thereof.

Before it was light on the morning of February 16, 1929, defendant called at the ranch-house of one Louis B. Larson, situate on public highway No. 80 about five miles west of Benson, and asked the loan of a jack to be used in starting his automobile. A little later he returned to Larson's and requested the latter to tow his car so that the engine would start. The car was a blue Ford coupe and Larson assisted in starting it by attaching his own car thereto and towing it about 200 feet on to the main road, when the engine began to work. Defendant then drove off in the direction of Benson. Before going, however, he wanted to sell the Ford to Larson. He appeared at a service station in Benson at about 7 o'clock, obtained water for the engine, and here again wanted to sell the car. About 8:30 o'clock Larson, while on his way to do some repair work on the fence on his premises, discovered blood marks and signs on the surface of the ground under or near the fence as though something had been dragged, and, being attracted thereby, he followed the blood marks and other signs, which originated not far from where the Ford had stood, for about 75 yards northerly into a field and 25 yards westerly, where he came upon a dead body in a wash or depression, the head covered with an old coat. He thereupon notified the peace officers of Cochise county of his discovery. About 2:30 or 3 o'clock that afternoon defendant appeared, driving the same blue Ford coupe at a service station in Lordsburg, New Mexico, and while he was trying to get one of the rims repaired, or to sell the car, he was arrested.

Some four hours after his arrest, Sheriff George Henshaw of Cochise county, and two deputies, and a special agent of the Southern Pacific Company, arrived at Lordsburg, and the New Mexico officials turned defendant over to them, who returned him, the five of them riding in the sheriff's car to Benson, arriving there at 2:30 o'clock the morning of February 17th. On the return trip defendant confessed to the sheriff and his deputies and the Southern Pacific special agent that he had killed Martin Parko, near Larson's house, by shooting him in the head while he was in a recumbent position on the seat of the car, with his head wrapped with a blanket, asleep or trying to sleep. He said that he was "hitch hiking" from Los Angeles, California, to Claysville, Pennsylvania, where he was born and reared, when Parko, driving the Ford coupe, overtook him at El Centro, California, and gave him a lift; that he had ridden with Parko from El Centro, by way of Yuma, California, through Phoenix, Arizona, to Larson's place, where they had camped for the night; that he was tired, having had but little sleep since leaving Los Angeles, and that he had had very little food. He admitted that the pistol with which he shot Parko was his; that he stripped Parko of all his money, some $15, his watch, a pocket folder, in which were some papers identifying Parko as Mike A. Baker (these personal things of the deceased having been taken from the defendant after his arrest); that he threw the pistol away immediately after the fatal shot; and that he hid the blanket that was around Parko's head when he shot him. The pistol and blanket were later found in the places or localities he said he left them. The pistol had one empty shell, and the blanket was powder burned and stained with blood. He gave to the officers the name of Mike A. Baker, corresponding with identification papers found on the deceased by him.

The confession was obtained by the officers from him by persistent questioning. They did not threaten defendant, but they pressed him to tell the truth about the matter. They made no promise of any favors; neither did they advise him of his right to keep silent or tell him if he inculpated himself it would be used against him.

On the trial Sheriff Henshaw gave the confession in much greater detail than we have stated it, without any objection whatever from defendant. Deputy Sheriff Fred Bennett, testifying, had related the circumstances under which the confession was made, and had said, "So he (defendant) started in then and told the story that Mr. Henshaw said on the stand," whereupon for the first time counsel for defendant objected in these words:

" . . . I take it that the story he told Mr. Henshaw was inadmissible as the defendant had not been properly cautioned, and that it couldn't have been introduced as a confession. I didn't make the objection at that time, but I object at this time to any repetition of it on the ground that it purports to be a confession and it wasn't lawfully obtained, and for that reason that a repetition of it should not be given to the jury."

This objection was overruled, and Bennett related the confession as he remembered it. At the close of his testimony, defendant moved to strike all evidence of the alleged confession, on the ground that it was improperly obtained, which motion was denied. Like objections and rulings were made with reference to the testimony of Deputy Sheriff Jess Moore and special agent of the Southern Pacific, J. R. Birmingham.

Soon after the sheriff's party arrived in Benson with defendant, he repeated his confession in the presence of the county attorney, his deputy, the sheriff, and others,...