Janovich v. State

• Citation: 32 Ariz. 175,256 P. 359
• Decision Date: 31 May 1927
• Docket Number: Criminal 651
• Parties: GEORGE JANOVICH, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

256 P. 359

32 Ariz. 175

GEORGE JANOVICH, Appellant, v. STATE, Respondent

Criminal No. 651

Supreme Court of Arizona

May 31, 1927

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

Mr Bruce Stephenson, for Appellant.

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

OPINION

LOCKWOOD, J.

George Janovich, hereinafter called defendant, was informed against by the county attorney of Cochise county for the crime of murder. The jury returned a verdict of murder in the first degree, fixing the penalty at death, and, after a motion for new trial was made and denied, defendant was duly sentenced in accordance with the verdict and has brought the case before us for review.

The assignments of error raise but one question, which is as to the legality of the admission in evidence of a certain photograph. In order that we may discuss this, it will be necessary that we review briefly the facts in the case.

There is no conflict in the evidence on any material point. It appears therefrom that defendant was a miner of some thirty years of age, born in Jugo-Slavia, who had lived in the United States some seven years, and was so ignorant of the English language he testified through an interpreter. The deceased, Evana Janovich, was his wife. She was also born abroad and was about twenty-five years old at the time of her death. Some two months prior to the killing defendant went to California, looking for work. While there he became possessed with the idea that his wife was untrue to him, although there is nothing in the record to show his belief was founded on fact except his own statement as to the inferences which he had drawn from her conduct while he was away.

He returned to Bisbee and went to the house where his wife and their eighteen month old daughter were stopping, and along in the late afternoon took her for a walk. They were seen shortly before dark sitting near the edge of a railroad track in the outskirts of Bisbee. At that time deceased appeared very much worried over something, while defendant was holding an open knife in his hand and sitting sullenly beside her. Shortly thereafter he returned to the house and announced to its inmates, who were friends of the family, that he had just killed his wife.

The officers were immediately notified and they arrested defendant and went with him to where the body of deceased was lying. When questioned by the officers as to the reason for the killing, he stated, in substance, that he did it "because I like to." The body of deceased was removed to the undertaking parlors, cleansed and a photograph thereof taken, showing the nature of the wound which caused her death.

The defendant raised the general issue of not guilty. On the trial of the case the state proved the identity of the deceased and the nature of the wound by oral testimony, and then attempted to offer in evidence the photograph. To this defendant objected, on the ground that, since neither the identity of the deceased nor the cause of death were in question or would be put in question by him, the photograph was inadmissible, as its only purpose and effect would be to inflame the minds of the jury.

The county attorney insisted, first, that the state could not be limited in the proof of the identity of the deceased and the cause of death to oral testimony, but had the right, in addition, to show it by any physical exhibits, including photographs, and, second, since the nature of the wounds might have a bearing on the atrocity of the crime, the jury, which, under the law in Arizona, fixes the penalty in a case of murder in the first degree, had the right to see as well as to hear what their exact character was. Both counsel for defendant and for the state have cited to us a number of cases bearing on this question. We think the correct rule of law on the use of exhibits in cases of this kind is well laid down in State v. Moore, 80 Kan. 232, 102 P. 475, wherein the court says:

"Several witnesses who were present described all that occurred at the shooting, and a physician who examined the body of the deceased after death described the location, extent, and effect of the wounds inflicted. Therefore it is argued that the evidence afforded by the jacket was wholly immaterial and unnecessary. The jacket supplied competent proof of relevant and material facts, and it is not for appellant to say how much proper evidence shall be produced against him. Especially is this true when he is standing upon all his rights under a general plea of not guilty. Perhaps all the eye-witnesses need not have been examined, but appellant had no right to insist that the state be limited to one or two or three of them. Perhaps the physician's testimony might have been confined to matters not proved by the jacket, but it could not be rejected because of the duplication. The inanimate garment told clearly and truthfully the story of a woman shot twice in the back, and hence, by legitimate inference, maliciously, willfully, deliberately premeditatedly, and without justification or excuse. It had a rightful place among the accusing witnesses, none of whom could be set aside at appellant's option because they were numerous.

"It is argued that the introduction in evidence of the dead woman's...