Jaime v. Territory of Arizona
| Decision Date | 27 March 1908 |
| Docket Number | Criminal 246 |
| Citation | 94 P. 1092,12 Ariz. 5 |
| Parties | TOMAS JAIME, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Graham. F. S. Nave, Judge. Affirmed.
The facts are stated in the opinion.
H. K Dial, Attorney for Appellant.
E. S Clark, Attorney General, for the Territory.
Malice and deliberation must be shown beyond a reasonable doubt. State v. Greenleaf, 71 N.H. 606, 54 A. 38; Crawford v. State (Tex. Cr.), 70 S.W. 548; Drake v. State, 45 Tex. Cr. 273, 77 S.W. 7; Vann v State, 45 Tex. Cr. 434, 108 Am. St. Rep. 961, 77 S.W 813. The law of self-defense once put into operation abides throughout the encounter. "Where the defendant shot the deceased, a third shot while he was arising from his fall caused by the second shot, he is not guilty of manslaughter merely because the third shot may have been unnecessary." Crow v. State, 48 Tex. Cr. 419, 88 S.W. 814. When self-defense is urged, the reputation of the deceased is in issue. "Where the evidence leaves it in doubt as to who was the aggressor, evidence of reputation of deceased for violence is admissible." People v. Lamar, 148 Cal. 564, 83 P. 993; State v. Hunter, 118 Iowa 686, 92 N.W. 872; Commonwealth v. Booker, 25 Ky. Law Rep. 1025, 76 S.W. 838; State v. Crawford, 31 Wash. 260, 71 P. 1030; People v. Gaimari, 176 N.Y. 84, 68 N.E. 112; Andrews v. State, 118 Ga. 1, 43 S.E. 852. If the killing took place under circumstances that could afford the slayer no reasonable grounds to believe himself in peril, he could derive no advantage from the general character of deceased for turbulence and revenge. But if the circumstances of the killing were such as to leave any doubt whether he had not been more actuated by the principle of self-preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motive by which he had been actuated. State v. Ellis, 30 Wash. 369, 70 P. 963; Hobach v. State, 43 Tex. 242; Daniel v. State, 103 Ga. 202, 29 S.E. 767; State v. Graham, 61 Iowa 608, 16 N.W. 743; Payne v. Commonwealth, 1 Met. (Ky.) 370; Moriarty v. State, 62 Miss. 654; State v. Elkins, 63 Mo. 159. The defendant's testimony made the evidence tendered relevant and material. State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883, 45 P. 145.
"Uncommunicated threats are admissible where there is doubt as to who was the aggressor." Sinclair v. State, 87 Miss. 330, 112 Am. St. Rep. 446, 39 So. 522, 2 L.R.A., N.S., 553. "Threats of deceased are admissible, though no hostile demonstration by him is shown, to rebut the presumption of malice from arming by accused." Sinclair v. State, 87 Miss. 330, 112 Am. St. Rep. 446, 39 So. 522, 2 L.R.A., N.S., 553. "Where the plea is self-defense, the defendant has the right to show any facts tending to prove his good faith of his belief that he was in danger." Cole v. State, 48 Tex. Cr. 439, 88 S.W. 341; Allison v. United States, 160 U.S. 203, 16 S.Ct. 252, 40 L.Ed. 395; Meuly v. State, 26 Tex. Cr. App. 274, 8 Am. St. Rep. 477, 9 S.W. 563.
-- The appellant was indicted by the grand jury of Graham county, at the April term of the district court, 1907, for the crime of murder. He was tried and found guilty, and sentenced to serve a life term in the territorial prison.
From the judgment of the trial court, and the denial of his motion for a new trial, he has appealed, and has assigned as errors: (1) The court erred in not permitting the defendant to prove that deceased bore the reputation in the community in which he lived of being a violent and dangerous man. (2) The court erred in not permitting the defendant to prove uncommunicated threats made by deceased. (3) The court erred in not charging fully the law of justifiable homicide. (4) The court erred in not charging on every theory of the case presented by the evidence. (5) The court erred in overruling defendant's motion for a new trial.
The evidence in this case shows that some time before 7 o'clock A.M. on the 27th day of December, 1906, the deceased, Jose Maria Herrera, came to the house of Cirprina Cortez, in the town of Morenci, and called the defendant, Tomas Jaime, to come out and bring his gun with him, that he had one too. Then the defendant got his gun and went out to where the deceased was waiting, and they both went off together directly through the town of Morenci toward the place where defendant was employed, and over the road that he traveled each day to and from his work. Deceased and defendant each had a pistol, and a miner's candle-stick, and each carried his lunch can in his hand. One witness testified that the two men were going along together when he saw the deceased make a grab for the defendant; that he had a miner's candle-stick in his hand, and made a motion like he was going to hit the defendant, and defendant jerked out his pistol and shot him. After the shot was fired a number of parties attracted by the noise looked in the direction from whence it came, and saw the defendant fire two more shots at deceased. The defendant testified that the deceased had threatened to kill him, and, while armed, had offered a party $5 if he would bring defendant out of the house on a certain occasion. The defendant admitted the killing, but claimed that he did it in self-defense.
The first assignment, that "the court erred in not permitting the defendant to prove that deceased bore the reputation of being a violent and dangerous man," is urged upon the ground that, "where any evidence tends to show that the defendant acted in self-defense, the reputation of the deceased can be put in issue, for the reason that where the circumstances of the killing were such as to leave any doubt whether the defendant had been actuated by the principle of self-preservation rather than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the real motive by...
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