Hernandez v. State

• Citation: 43 Ariz. 424,32 P.2d 18
• Decision Date: 26 April 1934
• Docket Number: Criminal 794
• Parties: MANUEL HERNANDEZ, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

32 P.2d 18

43 Ariz. 424

MANUEL HERNANDEZ, Appellant, v. STATE, Respondent

Criminal No. 794

Supreme Court of Arizona

April 26, 1934

APPEAL from a judgment of the Superior Court of the County of Pinal. E. L. Green, Judge. Judgment affirmed.

Mr. H G. Richardson, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. John Francis Connor, Assistant Attorney General, and Mr. W. E. Truman County Attorney, for the State.

OPINION

McALISTER, J.

Manuel Hernandez and his brother Fred Hernandez were jointly charged by information with the crime of murdering one Charles P. Washburn. Both were convicted of murder in the first degree and given the death penalty. They were tried separately and have brought their convictions here in separate appeals.

No controversy exists as to the killing or the manner in which it was done. A written statement by the defendant admitting it and describing it in detail was received in evidence and it appears from it that on Saturday, January 21, 1933, Manuel and Fred left their mother's home some four or five miles east of Casa Grande, Pinal county, Arizona, for the purpose of hunting rabbits and that as they were walking along or near the Casa Grande-Tucson highway they saw a prospector's camp about 300 yards south of this road where an old man, later shown to be Charles P. Washburn, was sitting on a box by a fire outside a tent. Seeing him there alone the boys conceived the idea of going over and robbing him. On their way to where he was Fred picked up from a trash pile an iron Ford spindle and when they reached him, Manuel, in accordance with their previous arrangement, engaged him in conversation, while Fred, after sneaking up and standing somewhat to his rear for a very short while, struck him over the head with the spindle, the result being that he fell unconscious to the ground. They then dragged him on his back in a southeasterly direction about 170 yards and stopped, whereupon Manuel, to make sure that he was dead, shot him in the head, scattering a part of his brains on the ground and taking instantly whatever of life may have been left in him. They pulled his lifeless body a short distance farther on and after taking from his pockets seven five-dollar bills, dumped it in an old abandoned well 10 or 15 feet in depth and then covered it with brush and dirt.

Following this the boys returned to the prospector's camp and drove away his Model T Ford truck, but it went only a few hundred yards when its wheels went down several inches in mud and was abandoned by them. From there they went to their home, but before reaching it threw their gun into a mesquite brush. Manuel remained there about one-half hour and then went to Casa Grande from where he and Fred went by Coolidge to Chandler and remained until Wednesday when they returned to their mother's. Fred stayed there but Manuel went back to Chandler where he was arrested.

The day following the death of Washburn his body was discovered and two or three days later the shotgun which the boys threw away was found. The officers learned that it had been in the possession of the two Hernandez boys and soon afterwards arrested Fred and took him to Casa Grande where he admitted the crime and told the officers his brother, Manuel, who was with him at the time, could be found at Chandler. The latter was arrested within a short time thereafter and both boys taken to Florence and placed in jail.

On January 31st following, Manuel made and signed a full statement relative to the crime which was introduced in evidence, and the testimony received at the trial was corroborative of it. Manuel was a witness in his own behalf but did not deny or repudiate anything contained in his signed confesion. He did state, however, that after he and his brother left the house that morning they drank two pints of whisky they had hid some distance from the house three or four days before, though he said nothing about this in his written statement and several persons testified that he stated on January 31st that he had not been drinking the day of the killing. It was not contended at the trial nor is it here that the defendant should not have been convicted of murder in the first degree but the claim is that, due to the extreme youth of him and his brother Fred, seventeen and eighteen years respectively, and to the further fact that at the time of the killing they were under the influence of intoxicating liquor, the penalty inflicted might have been life imprisonment instead of death if the court had properly instructed the jury.

Most of the assignments are based on the court's refusal to give certain instructions and the giving of others. The defendant requested a number which dealt with the duty of the jury in fixing the punishment in case it found the defendant guilty of murder in the first degree but the court declined to give them, and the first seven assignments grow out of this refusal. Under the statutes of this state murder is divided into murder in the first degree and murder in the second degree, the first being punishable by death or life imprisonment, the choice between the two being in the discretion of the jury trying the case. Its duty in this respect is prescribed by section 4585, Revised Code of 1928, reading as follows:

"Punishment. Every person guilty of murder in the first degree shall suffer death or imprisonment in the state prison for life, at the discretion of the jury trying the same, or, upon the plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years."

It is clear from this that the question of punishment in first degree murder cases is wholly within the jury's discretion and that the court has no duty in connection therewith other than to advise it that it must determine which of the penalties -- death or life imprisonment -- shall be imposed upon the defendant if it finds him guilty of that offense. The instructions refused, however, were requested upon the theory that it was the court's duty to inform the jury that it might fix the defendant's punishment at life imprisonment in case it found him guilty of murder in the first degree and extenuating or mitigating circumstances were shown. This was in effect asking the court to advise the jury when it was proper for it to fix the death penalty and when life imprisonment, in convictions for this offense, a matter that the statute leaves solely to the discretion of that body.

Such a request also overlooks the fact that prescribing punishment in the alternative does not have the effect of creating two grades of the offense, one of which is punishable by death and the other by life imprisonment. The crime, notwithstanding this form of punishment, is still single and not divided into degrees; hence, the court, when it has instructed the jury as to the elements constituting the offense and advised it that it must, in case it finds the defendant guilty, determine which of these punishments shall be imposed, has exhausted its powers in the premises, and any attempt on its part to go further and inform the jury that under certain circumstances it might impose death and under others life imprisonment would in effect usurp the prerogatives of the jury and be wholly improper. A choice between these two penalties having been committed to the jury, it should be permitted to discharge this function unaffected and uninfluenced by any statement of the court as to what portions of the evidence it shall consider in determining the matter. "This discretion," to use the succinct but correct statement of the rule in People v. Kamaunu, 110 Cal. 609, 42 P. 1090, 1091, which is followed in effect by practically all the courts, "is given to the jury, and the court cannot direct or advise them upon the subject further than to inform them of their function." See the following: Grant v. State, 124 Ga. 757, 53 S.E. 334; Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456; State v. Thorne, 39 Utah 208, 117 P. 58; Id., 41 Utah 414, 126 P. 286, Ann. Cas. 1915D 90; Cohen v. State, 116 Ga. 573, 42 S.E. 781; State v. Bosworth, 86 Vt. 71, 83 A. 657; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; United States v. Williams, (D.C.) 103 F. 938; People v. Ross, 134 Cal. 256, 66 P. 229.

To support his contention the defendant relies upon the decisions of the courts of California from which section 4585, supra, was taken, but we have been cited to no case from that jurisdiction holding it error to deny a request for such an instruction, though the Supreme Court of that state has refused several times to say that it was reversible error to give it. In its last statement on the subject, which appears in People v. Bollinger, 196 Cal. 191, 237 P. 25, it advises the trial courts of that state, after stating that such an instruction is not erroneous, that the "practice of giving such charge should be abandoned," because "in our opinion, the trial court should never instruct the jury as to how the discretion should be exercised." The court, after pointing out the cases in which it has been called upon to consider the question, uses this language:

"We have, however, gone into the subject in the hope, if not the expectation, that the practice of giving such instructions may be abated, thus giving assurance that the penalty reflects the decision of the jury alone, and at the same time sparing this court the necessity of repeatedly passing on such assignments of error. And considering the numerous occasions this court has held that section 190 of the Penal Code confers on the jury alone the discretion of determining the punishment in cases of guilt of murder in the first degree, ...