Macias v. State
| Decision Date | 31 December 1931 |
| Docket Number | Criminal 750 |
| Citation | 6 P.2d 423,39 Ariz. 303 |
| Parties | JESUS MACIAS, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Affirmed.
Mr Greg Garcia, for Appellant.
Mr. K Berry Peterson, Attorney General, Mr. J. R. McDougall Assistant Attorney General, and Mr. Rouland W. Hill, County Attorney, for the State.
The defendant, Jesus Macias, was convicted of murder in the first degree, and sentenced to life imprisonment. He has appealed and assigns several reasons therefor. He asserts that the information fails to charge murder in the first degree, and that his conviction thereof should be set aside. The allegation in the information is that "Jesus Macias on or about the 5th day of November, A.D. 1930 . . . did then and there wilfully, unlawfully and feloniously and with malice aforethought, kill and murder one Enrique Hernandez, a human being."
The contention is that the information, in order to charge first degree murder, should allege that the act of killing was "wilful, deliberate and premeditated"; that it is not enough to allege that it was "wilful and with malice aforethought." He bases this contention upon the language of section 4584 of the Revised Code of 1928 distinguishing the crime of murder into degrees. By that section, as we said in Solice v. State, 21 Ariz. 592, 193 P. 19, "it is divided into two degrees -- the first degree including all premeditated, wilful, and deliberate murder, and all killing done in the perpetration or attempt to perpetrate certain lesser crimes; the second including all other kinds of murder."
In the section of the statute (4583) immediately preceding the section distinguishing it into degrees, the offense of murder is defined as "the unlawful killing of a human being with malice aforethought."
In Marquez v. Territory, 13 Ariz. 135, 108 P. 258, we laid down the rule that it is not necessary to set forth in an indictment for murder the means and manner of death. The form of the indictment in that case is not set out in the opinion, but we assume from what is said that the omission was of a statement of the instrument with which defendant killed the deceased. Since that case it has been common practice in this jurisdiction to omit from the information or indictment for murder a statement of the means and manner of death. The means used and the manner in which the killing is effected in many cases supplies the intent necessary to make out murder in the first degree, as where the killing is accomplished by lying in wait, or by poisoning, or in the perpetration of arson, burglary, robbery, rape or mayhem. These distinguishing features between murder in the first and second degrees are matters of evidence to be considered by the jury in determining whether the offense charged is of the higher or lesser degree. The means and manner of accomplishing the unlawful killing are important in determining the degree, but are not essential to a good indictment for murder in the first degree.
In Williams v. Territory, 13 Ariz. 306, 114 P. 566, the defendant was indicted for the crime of assault with intent to commit murder. The point was made that the indictment was defective in failing to allege that the assault was deliberate and premeditated. We said:
In Rodriquez v. Territory, 14 Ariz. 166, 125 P. 878, relied upon by defendant to sustain his point, it was said an indictment for murder in the first degree must charge that the killing was wilful, deliberate and premeditated, and with malice aforethought. But an examination of the case will disclose that such statement was unnecessary. In fact, in that case we upheld an indictment that did not allege the killing was deliberate and premeditated.
The objection made to the information is not well founded. It does charge murder in the first degree.
Complaint is made to the effect that the jury "was not perfectly free from bias and prejudice, and (not) in such condition of mind as to act with an entire impartiality," and that the verdict is contrary to the law and the evidence. There is nothing in the record to sustain the statement concerning the jury, and we pass it without further comment. The rest of this assignment invites us to examine and weigh the evidence. This we will do only for the purpose of determining if there was substantial evidence to support the verdict. We will not interfere with or disturb the verdict where the evidence of defendant's guilt is conflicting, or where reasonable, persons may draw different conclusions therefrom.
Defendant submitted his cause to the jury on the proposition that it was a case of taking the life of deceased or losing his own. He and deceased were employees, as miners, of the Miami Copper Company, worked in the same mine during what it known as the "graveyard" shift, that is, from 11:00 P.M. to 7:00 A.M. On the morning of November 5, 1930, they ascended from the mine in the same elevator. Those miners who lived in the town of Miami, after coming out of the mine, bathing and changing their clothes, followed the same footpath, as we gather, from the mine into the town. On this morning the defendant and one Salvador Alonzo preceded deceased along the usual pathway to the town but a few minutes. They separated at or in front of defendant's rooming-house. Defendant entered his room, obtained therefrom his pistol, and returned to or near the junction of Gibson Street and Miami Avenue, and when deceased came along on his way to his home spoke two or three words to him and the shooting began. The deceased was armed, and several shots were exchanged. This occurred at about 7:30 in the morning. Which first drew his gun or which fired the first shor is in dispute. Deceased was mortally wounded, and died in the Inspiration Hospital that afternoon at 5:25 o'clock. There existed between them some feeling of hostility, but for how long the evidence does not disclose. They had quarreled and deceased had made threats against defendant, of which defendant had been told. Deceased had been carrying a pistol to his work for some time, and defendant knew it. There was evidence that defendant's reputation for peace and quietude was good, and that of deceased bad.
Defendant argues that this evidence conclusively shows he was acting in self-defense when he shot deceased, and that he should have been acquitted. The evidence strongly tends to show that defendant armed himself and deliberately intercepted deceased, as the latter was going from the mine to his home, and incited the trouble that resulted in the killing. The law is well settled that the plea of self-defense is not available to one who was at fault in provoking the difficulty that resulted in the homicide. Carter v. State, 18 Ariz. 369, 161 P. 878; Murphy v. State, 33 Ariz. 336, 264 P. 685; Hicklin v. Territory, 9 Ariz. 184, 80 P. 340.
Defendant complains of the admission of a statement by deceased concerning the shooting, made in the Inspiration Hospital to Charles R. Byrne, sheriff of Gila county, along about 9 o'clock that morning, on the grounds that it was not shown that deceased was in the possession of his faculties, or that he believed at the time he was going to die.
Dr John E. Bacon testified that he saw Hernandez first at 7:50...
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