Halderman v. Territory of Arizona

• Decision Date: 28 March 1900
• Docket Number: Criminal 137
• Citation: 7 Ariz. 120,60 P. 876
• Parties: WILLIAM HALDERMAN et al., Defendants and Appellants, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

60 P. 876

7 Ariz. 120

WILLIAM HALDERMAN et al., Defendants and Appellants, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 137

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

Marcus A. Smith, for Appellants.

It is the duty of honest prosecution to place on the stand every eye-witness of the homicide known to it, so that the jury may determine from all who saw it -- not a selected few -- what the real facts are. It is not the just province of a prosecution to secure a verdict. Its duty, like that of a judge, is to see that justice is done. Its duty is to shield the innocent and punish the guilty under due form of law. It can do neither by selecting its witnesses. It can do both by putting in the witness-box all who saw the transaction. Territory v. Hanna, 5 Mont. 248, 5 P. 252.

The court charged: "On charge of murder, killing by defendant proved, the burden of proving mitigation devolves on defendant," or, in other words, there is something presumed and taken by implication against the defendant. What is "presumed" by such an instruction? What is "taken by implication" in such language? Murder is presumed; deliberation is presumed willful killing is presumed; malice is presumed; and not one of these things need be shown by the prosecution. No facts need be shown from which the jury might deduce these ingredients of murder, but only the killing need be proven and the defendant is guilty of murder, unless he assumes a burden under which, by a preponderance of testimony, he must satisfy the jury, against presumptions raised, not by evidence, but by the illegal ipse dixit of the trial judge.

The law does not imply malice nor any other fact against the defendant. Rush v. Commonwealth, 78 Ky. 268.

In speaking of defendants' interest in the case, and commenting to their prejudice on it, the court, among other things, lays down the following as the law: "If their [the defendants'] statements be convincing and carry with them belief, you have the right to receive them and act upon them. If not [convincing] you have a right to reject them."

Why are the defendants selected for the judge's criticism, and why does he say of them and of no other witness that their testimony must be convincing before you have a right to receive it?

Chief Justice Fuller, while speaking for a unanimous court in the case of Allison v. United States (p. 399), says: "As a witness a defendant is no more to be visited with condemnation than he is to be clothed with sanctity, simply because he is under accusation, and there is no presumption of law in favor of or against his truthfulness." The court further say: "The wise and humane provision of the law that the person accused is a competent witness should not be defeated by a hostile instruction of the judge." Allison v. United States, 160 U.S. 896, 16 S.Ct. 252; Hicks v. United States, 150 U.S. 442, 14 S.Ct. 144; Commonwealth v. Wright, 107 Mass. 403; Chambers v. People, 105 Ill. 409; Greer v. State, 53 Ind. 420; Veach v. State, 56 Ind. 584, 26 Am. Rep. 44; Buckley v. State, 62 Mass. 705; State v. Johnson, 16 Nev. 36.

C. F. Ainsworth, Attorney-General, for Respondent.

The granting of continuance is a matter within the discretion of the court, and the refusal to grant a continuance will only be interfered with by an appellate court where it is plain that great prejudice has resulted to the defendant from such action. State v. Rorabacher, 19 Iowa 154.

That the prosecution should be allowed to file counter affidavits to those in support of an application for a continuance, see State v. Bevel, 89 Iowa 405, 56 N.W. 545; People v. De Lacey, 28 Cal. 590; State v. McCoy, 111 Mo. 517, 20 S.W. 240.

Even though a continuance asked on account of an absent witness had been wrongly refused by the lower court, the upper court would not interfere with the judgment, as it appeared clearly from the evidence that the defendant was guilty. Cave v. State, 33 Tex. Cr. 335, 26 S.W. 503.

The prosecution is not bound to place every witness on the stand; but only to place on the stand those who it thinks will make out its case. State v. Martin, 2 Ired. (N. Car.) 101; Williford v. State, 36 Tex. Cr. 414, 37 S.W. 762; Kidwell v. State, 35 Tex. Cr. 263, 33 S.W. 342; Royens v. State, 33 Tex. Cr. 143, 47 Am. St. Rep. 25, 25 S.W. 786.

That upon the proof of the homicide, the burden of proving circumstances of mitigation, etc., is upon the defendant, see Rev. Stats. Ariz., Pen. Code, sec. 1655; United States v. Crow, 3 Dak. 106, 14 N.W. 437; State v. Byers, 100 N.C. 512, 6 S.E. 420; Sawyer v. People, 91 N.Y. 667; Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96, 8 So. 98; Commonwealth v. York, 9 Met. 93, 43 Am. Dec. 373; Smith v. State, 86 Ala. 28, 5 So. 478; Brown v. State, 83 Ala. 33, 3 Am. St. Rep. 685, 3 So. 857; State v. Brooks, 23 Mont. 146, 57 P. 1038.

OPINION

SLOAN, J.

-- The appellants, William Halderman and Thomas Halderman, were jointly indicted, tried, and convicted of the murder of one Ted Moore at the June, 1899, term of the district court of Cochise County. The court, in accordance with the verdict of the jury, sentenced both defendants to be hanged. From the judgment of conviction, and from the order overruling their motion for a new trial, the defendants bring this appeal.

It appears from the record that on April 6, 1899, a complaint was lodged before W. M. Monmonier, a justice of the peace for the precinct of Pierce, Cochise County, charging the Haldermans with having unlawfully killed cattle. A warrant of arrest was issued by the justice upon this complaint, and placed in the hands of one C. L. Ainsworth, constable of the precinct, and a deputy sheriff of the county. Ainsworth at once went to the Chiracahua Mountains, where the Haldermans live, for the purpose of serving the warrant of arrest. On his way he stopped at the house of one Smith, and asked the latter to accompany him to the home of the Haldermans. Ainsworth and Smith then went to the house of one Ted Moore and, at the request of Ainsworth, Moore joined the party. The three then proceeded up the canon from the home of Moore to the house of the Haldermans, and found the latter absent. They then went to the house of a neighbor by the name of Wilson, where they found the defendants. Ainsworth and Moore rode to the front of the Wilson house, dismounted from their horses, and called the Haldermans out, whereupon Ainsworth read his warrant of arrest to them. Both Haldermans expressed a willingness to go with the officer, but before starting, upon the suggestion of the latter, went into the house to get their breakfast. While they were inside, Ainsworth called to them, and told them, as they might be detained at Pierce for two or three days, to take with them such articles of wearing apparel as they might need. Soon after, the Haldermans appeared, one at each of the two front doors of the house, armed with rifles, and at once opened fire, instantly killing Ainsworth, and mortally wounding Moore. As to the facts above stated, there is no substantial conflict in the evidence. The testimony of the witness for the prosecution, supported by the dying declaration of Moore, as to the circumstances of the shooting, is to the effect that at the time the Haldermans appeared at the doors, Ainsworth and Moore were both mounted and a short distance from the house; that the Haldermans, as soon as they appeared, called to Ainsworth and Moore to hold up their hands, but, without waiting, at once fired; that Ainsworth immediately fell from his horse, shot through the heart; that Moore turned his horse, and started off, but was shot through the bowels as he was riding away; that after the shooting the Haldermans immediately fled. The story, as told by the defendants, was, that between themselves and Moore there had existed a deadly enmity; that, after the warrant had been read, they asked the constable how they were to be taken to Pierce; that they were then told that they would have to walk down to a neighboring ranch, where there was a conveyance of some sort; that, fearing that Moore might on some pretext seek occasion on the way down to the ranch to do them harm, they concluded while in the house to take their rifles with them; that, as soon as they appeared at the front of the house, Moore pulled his gun and fired, that William Halderman at once returned the fire, and continued shooting until he had emptied his gun, and, as Moore continued to shoot, he then ran to the other door, where his brother, Thomas Halderman, stood, and, seizing the latter's gun, fired again at Moore, but by accident killed Ainsworth; that, fearing mob violence at the hands of the friends of Ainsworth, the two then left the country. The defendants were jointly indicted for the murder of Ainsworth, and also jointly indicted for the murder of Moore. Upon the latter indictment the defendants were tried and convicted. Before the trial the defendants made application for a continuance of the cause, based upon an affidavit made by one of the defendants, setting forth, in effect, that one Joseph Fisher, if present at the trial, would testify that in November, 1898, at or near the residence of the defendants, he (Fisher) was present at a quarrel between Moore and William Halderman, and heard Moore then threaten Halderman's life, and that subsequently, and before the homicide, on numerous occasions, he heard Moore make similar threats against Halderman; that the fact that Fisher would so testify was communicated to defendants' counsel immediately after the latter had been appointed by the court, and that...