Lee v. State

• Decision Date: 03 November 1924
• Docket Number: Criminal 553
• Citation: 27 Ariz. 52,229 P. 939
• Parties: EDD LEE, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

229 P. 939

27 Ariz. 52

EDD LEE, Appellant, v. STATE, Respondent

Criminal No. 553

Supreme Court of Arizona

November 3, 1924

APPEAL from a judgment of the Superior Court of the County of Graham. Alfred C. Lockwood, Judge. Affirmed.

Mr. D L. Cunningham, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

OPINION

ROSS, J.

The appellant, with J. B. Evans and Lloyd Evans, was charged by information with the crime of assault with a deadly weapon with intent to commit murder.

The evidence shows that on the night of September 29, 1921, Sheriff Skaggs, of Graham county, and two deputies, Will Mangum and S. I. Allred, went to a place near Artesia, in said county, for the purpose of seizing an illicit still and arresting the persons operating the same. The officers were joined by one Sparks and proceeded up a wash to a point within a few yards of the still. The still was in operation and two men were standing near it, one of whom, it is claimed, was the appellant. While the officers were watching the still, someone at or near it said: "Put out the fire; someone is coming up the wash." The fire was put out and the two men at the still started to run. The officers and Sparks attempted to follow the fleeing men, Allred and Mangum bearing to their right and Sheriff Skaggs and Sparks to the left. Allred was about twenty feet ahead of Mangum, and as he reached a point opposite a mesquite tree he heard a noise behind the tree and stopped and pulled his gun. Just as he did this he was shot in the left leg. After the shot was fired, a man ran from behind the mesquite tree going in a southerly direction. Shortly afterwards two more shots were fired through the brush. A few minutes after the shooting the dogs at Bunyan (E. L.) Evans' house began barking and continued to bark for a few minutes. Next morning the officers found tracks behind the tree from where Allred was shot, which tracks led from the tree towards Evans' house. A short distance from the tree the tracks of another man joined those coming from the tree. These tracks were later joined by the tracks of two more men, and were all traced directly to Evans' house. The morning after the shooting the officers arrested appellant, one Floyd Campbell, and the two Evanses, father and son, at or near the Evans house. Appellant's shoes were removed and fitted into the tracks by the mesquite tree and those leading from the mesquite tree to the Evans house. The shoes had holes in the soles and all of the tracks showed the impression of these holes.

It appears that the appellant and the other defendants had a preliminary trial October 3, 1921, and were bound over to the superior court. On that day an order of commitment for assault with intent to commit murder was duly entered in the docket of the justice of the peace, but no certified copy thereof was transmitted, with the other papers, to the clerk of the superior court. On the same day the county attorney filed an information in the superior court charging the appellant and the two Evanses with an "assault upon the person of S. I. Allred, by shooting the said S. I. Allred, with the intent to kill and murder the said S. I. Allred." On October 4th defendants pleaded not guilty to this information and the case was set down for trial for October 21st, which order was later vacated and the case reset for October 25th. On October 21st another information was filed against defendants, charging them with an assault upon Allred "with a deadly weapon, to wit, a certain firearm loaded with powder and ball, with intent . . . to kill and murder the said S. I. Allred." On October 25th the defendants' motion to set aside the information of October 3d, on the ground that they had not been bound over, was granted. On the same day a like motion by defendants directed at the information filed October 21st was denied. Before the last motion was passed upon a copy of the order of commitment made by the justice of the peace on October 3d was ordered filed in the superior court. The demurrer of defendants that information did not state the public offense of assault with a deadly weapon was overruled. Appellant, on the trial, denied shooting Allred and contended that he was accidentally shot by Deputy Sheriff Mangum. He was convicted of an assault with a deadly weapon and sentenced to serve from two and one-half to five years in the state prison. He appeals from the order overruling his motion for a new trial and from the judgment of conviction.

The first, second and fourth assignments are in effect: (1) That the appellant had no preliminary trial upon a charge for assault with a deadly weapon and was not bound over to answer any such charge; (2) that no commitment to answer the charge of assault with a deadly weapon, with intent to commit murder, had been filed in the superior court; and (3) that the information failed to state facts sufficient to constitute the public offense of assault with a deadly weapon. It is undisputed that appellant had a preliminary examination and that the committing magistrate entered an order holding appellant to the superior court to answer for the crime of an assault with an intent to commit murder, before the filing of either of the informations. The commitment holding appellant was not by name for the crime of an "assault with a deadly weapon," nor was it lodged with the clerk of the superior court at the time the county attorney filed the information of October 3d or the one of October 21st.

The Constitution, in section 30 of article 2, requires that a preliminary examination be given in all felony cases; and the statute, paragraphs 872-897, inclusive, of the Penal Code, provides what shall be done by the committing magistrate on a preliminary examination. Paragraph 885, Id., after prescribing the form of order the committing magistrate should make upon holding an accused, further provides that:

"When a defendant has been examined and committed as heretofore provided in this section, it shall be the duty of the county attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense."

We find nothing in the statutes that forbid the filing by the county attorney of information before a copy of the order of commitment has been filed with the clerk, or requiring him to wait until such copy is filed.

In State v. Fertig, 14 Ariz. 540, 133 P. 99, and Solice v. State, 21 Ariz. 592, 193 P. 19, it was held by this court that the county attorney in filing the information against the accused was acting in a ministerial capacity and should set out in the information the offense for which the accused was held to answer by the committing magistrate. In the Solice case, it was stated that an information charging any of the degrees of a specified offense fell within the order of commitment.

While the appellant was not held to answer the charge of assault with a deadly weapon, he was held for the higher and more serious offense of an assault with intent to commit murder. These offenses are both against the person. They differ principally in that the element of the specific intent must concur with the act to constitute an assault with intent to commit murder. This offense may not always be committed with a deadly weapon, but that it is committed more often with such instrument than with any other means is well known. The two offenses are of the same general character or nature. Our statutes defining these offenses are taken from the California statutes. In People v. Pape, 66 Cal. 366, 5 P. 621, it is said:

"It is not contended by appellant but that the information sufficiently charges an assault with intent to murder. The jury found the defendant (appellant) guilty of an assault with a deadly weapon. The offense of which defendant was found guilty is included in that with which he was charged. People v. English, 30 Cal. 215."

There is nothing to appellant's contention that he was not bound over for the offense for which he was tried and convicted. And the fact that a copy of the commitment was not on file in the superior court at the time the information was returned was at most a technical error or defect and could not have affected any substantial right of appellant, and therefore, is no ground for reversal. Paragraph 1170, Penal Code 1913. While the crime of an assault with a deadly weapon is not a degree of the offense of assault with intent to commit murder, a commitment for the latter offense sufficiently describes the former as that an information based thereon for assault with a deadly weapon could not possibly mislead or prejudice the rights of the accused.

The information alleges that the instrument used was a deadly weapon. This, under the decisions, is a sufficient allegation of the lethal character of the weapon. People v. Congleton, 44 Cal. 92; People v. Villarino, 66 Cal. 228, 5 P. 154; People v. Pape, supra; People v. Savercool, 81 Cal. 650, 22 P. 856. See Chief justice BAKER'S opinion in territory v. West, 4 Ariz. 212, 36 P. 207.

Appellant complains of the court's rulings upon the admission of evidence:

(1) Witness Mangum, testifying in behalf of the prosecution, had told of Allred's being shot, of parties running away in the dark, and of hearing immediately thereafter "bullets striking through the trees -- mesquites." He was then asked if he called anybody's attention to the shots, and over objection, answered: "I made the remark to Mr. Allred that they were shooting back to scare us from following." Appellant moved that this answer be stricken as not a part of the res gestae and as...