Hann v. State

• Decision Date: 17 June 1926
• Docket Number: Criminal 617
• Citation: 30 Ariz. 366,247 P. 129
• Parties: CLARENCE HANN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

247 P. 129

30 Ariz. 366

CLARENCE HANN, Appellant, v. STATE, Respondent

Criminal No. 617

Supreme Court of Arizona

June 17, 1926

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

Affirmed.

Messrs Timmons & Hoover, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

Clarence Hann, hereinafter referred to as defendant, lived on a ranch in Yuma county, Arizona. It was a number of miles from the nearest town or post office and his acquaintances who lived in the country beyond the ranch were accustomed to get his mail for him at the post office and to deliver it at his home. One McCullough, who lived in the vicinity, having, on the third day of October, 1924, collected some mail for Hann, on his arrival at the latter's ranch, drove into the yard for the purpose of delivering the mail. As he entered the yard Hann came out of the house, and, when he saw McCullough stop, stepped back in, re-appearing in a moment with a shotgun, and, after ordering McCullough's companion, one Braniff, to leave the car, fired both barrels of the shotgun at McCullough, shooting out an eye with the first discharge and cutting off the left hand with the second.

Hann was thereafter informed against for assault with a deadly weapon with intent to commit murder, found guilty and sentenced to the state prison for not less than fifteen, nor more than twenty, years. A motion for a new trial was duly overruled and defendant appealed to this court.

There are eight assignments of error. These are general in their terms, and do not point out the particular errors complained of, so that we are compelled to resort to the argument of counsel to determine what legal propositions they attempt to raise. We have frequently criticized assignments of this character as imposing an unnecessary burden on the court, and perhaps causing it to overlook some points relied on, but nevertheless we will review them as best we may.

The argument on the first, second and third assignments of error is apparently intended as a complaint in regard to several instructions given, refused and omitted by the trial court. In discussing these instructions, we desire to reiterate two cardinal principles of criminal law in regard to instructions which we have stated repeatedly in many decisions, but which are frequently ignored or overlooked by counsel in assigning error. The first is that instructions will be considered as a whole, and not by taking therefrom certain isolated phrases or sentences. Faltin v. State, 17 Ariz. 278, 151 P. 952; Lenord v. State, 15 Ariz. 137, 137 P. 412; Quong Yu v. Territory, 12 Ariz. 183, 100 P. 462; United States v. Tenney, 2 Ariz. 127, 11 P. 472.

The second is that, if counsel fail to request instructions on any particular phase of the case, it is not reversible error, if the court fails to give them. Ward v. Territory, 7 Ariz. 241, 3 Ann. Cas. 137, 64 P. 441; Bush v. State, 19 Ariz. 195, 168 P. 508; Uren v. State, 27 Ariz. 491, 232 P. 398; Douglas v. State, 26 Ariz. 327, 225 P. 335.

With these two principles for our guidance we will consider the objections. Apparently the first is that the court took from the consideration of the jury the charge of assault with a deadly weapon by failing properly to explain the elements of voluntary manslaughter, and that the law of self-defense was practically eliminated by the instructions. We have examined them carefully, and, while they might be more explicit on these subjects, yet we think that as a whole the jury could not have been misled thereby. The court was particular to emphasize the fact that, in order to convict the defendant of the higher offense charged, both premeditation and malice were necessary, and carefully explained these two terms. Nor do we think the charge denied the defendant the right of self-defense, as later on the court explained fully the law of self-defense with the qualifications and limitations thereof. It is true that it would have been better had the court instructed fully on the elements of an assault with a deadly weapon, but there was no request by the defense therefor, and, as stated above, we have repeatedly held reversible error cannot be predicated on a mere failure to instruct. The court submitted to the jury a verdict for assault with a deadly weapon with intent to commit murder, for assault with a deadly weapon, and for not guilty. This, we think, was sufficient to satisfy the requirements of the law, especially when taken into consideration with the further instruction that, if it appeared defendant had committed a public offense, and there was reasonable ground of doubt as to which of two or more degrees he was guilty of, he could be convicted of the lower degree only. This last instruction favored the defendant, and we do not think it assumed him to be guilty of anything. Nor do we think the use of the phrase "reasonable ground of doubt" was objectionable. It is not to be assumed that any juror would entertain a reasonable doubt without having some grounds therefor which appear reasonable to him. We think the instructions given on the crimes charged, on the question of reasonable doubt, and self-defense were correct so far as they went, and that defendant is not in a position to raise the objection that they should have gone further.

The defense of insanity was made an issue in the case, and the court instructed thereon. This instruction reads as follows:

"If you believe from all the evidence beyond a reasonable doubt that, at the time of the committing of the alleged offense, the defendant was able to distinguish right and wrong, and to know the nature and quality of his act then you cannot acquit him on the ground of insanity. If you believe from the evidence beyond a reasonable doubt that the defendant committed the crime in manner and...