Macias v. State

Decision Date30 December 1929
Docket NumberCriminal 703
Citation36 Ariz. 140,283 P. 711
PartiesREFUGIO MACIAS, Appellant, v. STATE, Respondent
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Greenlee. Dave W. Ling, Judge. Affirmed.

Mr. T E. Allyn, Mr. D. A. Fraser and Mr. Isaac Barth, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon Assistant Attorney General, and Mr. H. Earl Rogge, County Attorney, for Respondent.



Refugio Macias, hereinafter called defendant, was informed against by the county attorney of Greenlee county for the crime of murder. The jury which tried the case found him guilty of murder in the first degree, and fixed the penalty at death. Judgment was duly pronounced in accordance with the verdict, and from this judgment defendant prosecutes his appeal to this court.

Counsel who represented defendant in the trial court filed a brief on appeal which contains some thirteen assignments of error. The Attorney General answered these assignments, and defendant's counsel replied thereto, and the case was ready for argument. At the last moment a request was made that other counsel be associated in the defense, and that he be permitted to file a supplemental brief. This brief was filed four days only before oral argument, and, instead of being supplemental, it was in effect a new opening brief containing ten assignments of error, only two of which appeared in the original opening brief. Since, however, this is a capital case, we permitted it to stand, and allowed the state twenty days in which to answer the new issues raised therein.

We shall consider the assignments of error in their logical rather than their numerical order, characterizing the assignments of the first brief by their numbers and the letter A, and the assignments of the supplemental brief by their numbers and the letter B. These assignments may be divided into three classes: Objections to the instructions, objections to the rulings of the trial court on the admission and rejection of evidence, and general objections not included in the other two classes. We shall consider the general objections first.

Assignment 1-A is that the court erred in denying defendant's motion to dismiss the information. This is based on the theory that no proper order holding defendant to answer was made in accordance with section 885, Penal Code of 1913. It appears counsel for defendant is in error regarding the facts on this point, as the record on file in this court shows a proper order made strictly in accordance with the statute.

Assignment 5-A is that the court erred in refusing defendant's request that the rule be enforced against all witnesses. This is a matter of discretion for the trial court, and a case will not be reversed on this ground unless the discretion was abused. Territory v. Dooley 3 Ariz. 60, 78 P. 138; 16 C.J. 841. No abuse of discretion appearing affirmatively from the record, the assignment is not well taken.

Assignment 13-A is that the court erred in denying the motion to set aside the verdict and for a new trial. The grounds set up in the motion are in most cases general ones using the language of the statute, and are not argued seriously by defendant's counsel, except in so far as they are presented under the other assignments.

Assignment 9-B is that the verdict of the jury was contrary to law. The only argument presented on this belongs more properly under assignment 10-B, that the verdict is contrary to the evidence, and we consider the two assignments together. It is argued that the evidence in the case, taken at its strongest against appellant, does not justify a verdict of more than murder in the second degree. These assignments require a consideration of the evidence. Taken in its most favorable interpretation in behalf of the state, as we must do under such assignments, it would justify the jury in believing the following to be the facts in the case. Defendant had for some four or five years been a resident of Morenci, Arizona. For a considerable part of this period he was enamoured with Paula Medina, the niece of Pedro Ornelas, the deceased. She did not reciprocate his affection, and he had endeavored repeatedly to force his attentions upon her. Early in the evening, prior to the killing of Ornelas, he accosted her on the street, and was at that time told by her to refrain from further molesting her. Shortly after this episode he went to the residence of Cipriano Delgada, her brother-in-law, where she was living, and her sister asked defendant why he was bothering Paula, telling him to leave her alone. Some time after this interview, he met Delgada in company with one Antonio Lerma, who was at that time Paula's recognized sweetheart. Upon seeing them, defendant applied abusive epithets to Lerma, and immediately opened fire upon both Lerma and Delgada with a revolver, wounding the former and sending a bullet through the coat of the latter. About 8 o'clock that evening, defendant again came to the Delgada house, and tried several times to break in through the door, but, not being successful, left. Near 1 o'clock in the morning, he returned, pushed on the doors, and tried to open the windows. Mrs. Delgada and her sister screamed, and their uncles, Pedro Ornelas, the deceased, and Julian De Luna, who were sleeping in a room in the lower part of the house, ran out of their room and up on the porch where defendant was standing. There was some conversation between the three, and then defendant fired at least three shots. One of these shots killed Ornelas almost instantly, he falling on the porch. Another mortally wounded De Luna, although he was able to return to his room before he died. Defendant then left the scene of the tragedy and was shortly after apprehended walking along near the road toward Clifton. Previously in the evening, after his first attempt to break into the Delgada house, and before his return at 1 o'clock in the morning, he left a packed suitcase with a friend, with the statement that, if after a while he did not come for it, he would send for it. These are the facts established by the evidence for the state.

Defendant's testimony, in substance, was that he had been drinking and was excited that night, so that he was not sure exactly what he had done, nor could he explain why he returned to the Delgada house at 1 o'clock in the morning. He did, however, state that, when he was on the porch of the house, Ornelas and De Luna attempted to assault him with knives, that he fired one shot into the floor, so they would not come close to him, and that when they continued their attack, forcing him back upon the corner of the porch so he could not well escape, he fired two other shots to defend himself, these two being the ones which took the lives of Ornelas and De Luna.

It is the theory of the state that defendant was so madly enamoured with Paula Medina that he made up his mind to remove any and all persons who, as he believed, stood between him and the object of his affections; and that the foregoing evidence shows a deliberate intention on his part, persisting throughout the day, to accomplish such designs; and that, believing deceased was about to interfere with him in his amorous desires, he killed him. We are of the opinion the evidence would justify a reasonable juror in believing the state's theory of the case was the correct one. Does such a theory support a verdict of murder in the first degree?

That the killing of Ornelas was unlawful unless committed in self-defense cannot be denied, and the jury by its verdict resolved this issue against defendant. In order, however, that a killing shall be murder in the first degree, there must be added to the unlawfulness, malice, deliberation and premeditation.

Malice may be either express or implied.

". . . It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied where no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Section 171, Pen. Code, 1913.

The evidence above set forth is amply sufficient, in our opinion, to sustain a finding of implied malice, at least. Do deliberation and premeditation also appear? In order that a killing shall be murder in the first degree, while it must be shown that a plan to murder was formed after the matter had been made a subject of deliberation and reflection, yet, in view of the quickness with which the mind may act, the law cannot set any limit to the time. There need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, and, if such is the case, the killing is murder in the first degree, no matter how rapidly these thoughts of the mind may succeed each other or how quickly they may be followed by the act of killing. Faltin v. State, 17 Ariz. 278, 151 P. 952; 29 C.J. 1114, 1115, and cases cited.

In the case at bar, the jury could properly have found from the evidence that a premeditated design on the part of defendant to kill anyone who interfered with his attentions to Paula Medina had existed for some time, and that, upon the appearance of Ornelas and De Luna on the scene, this intent and design became fixed upon them, and the act of killing followed immediately. If such was the case, all of the elements of first-degree murder appeared. It is true that, if defendant's testimony is to be accepted in its entirety the situation is otherwise, but it is the rule in this state...

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