McCann v. State

• Citation: 20 Ariz. 489,182 P. 96
• Decision Date: 18 June 1919
• Docket Number: Criminal 462
• Parties: IVAL McCANN, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

182 P. 96

20 Ariz. 489

IVAL McCANN, Appellant, v. STATE, Respondent

Criminal No. 462

Supreme Court of Arizona

June 18, 1919

APPEAL from a judgment of the Superior Court of the county of Maricopa. George H. Crosby, Jr., Judge. Affirmed.

Mr. H W. Clark, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. F. J. K. McBride, Mr Clyde M. Gandy, and Mr. L. B. Whitney, Assistant Attorneys General, and Mr. L. M. Laney, County Attorney, for the State.

OPINION

PATTEE, Superior Judge.

Charged with the murder of one Kenneth C. Falston, the appellant, McCann, was convicted in the superior court of Maricopa county of the crime of murder in the first degree. From the judgment of conviction he appeals to this court.

The evidence on behalf of the prosecution tends to show that Kenneth C. Falston came to th city of Phoenix from the state of Oregon early in October, 1917. He was afflicted with tuberculosis in an advanced stage, and was unable for that reason to engage in any regular employment. Soon after coming to Phoenix, he made the acquaintance of the appellant, McCann, and thereafter the two were much in company. One Ben Falston, a brother of Kenneth C. Falston, came with the latter from Oregon, and soon after reaching Phoenix obtained employment at a ranch some miles from that city. On the morning of November 19, 1917, Kenneth C. Falston and McCann were seen in company at a fire which occurred in Phoenix, and in conversation with a third party, in the presence of McCann, Falston stated that he had sold his automobile to McCann, and that they were about to go about twenty-eight miles in the country to examine another automobile with a view to purchasing it. Falston had on deposit in the Phoenix National Bank a sum of money, and on November 19, 1917, he presented his check for $300 and was paid the amount of the check by that institution. On the afternoon of November 19th, according to the testimony of the witnesses, Falston, in company with McCann, was seen at Scottsdale, Maricopa county. On the 19th of November, Falston disappeared. He did not again appear at the lodging-house where he slept, nor was he seen alive by any person after his appearance at Scottsdale. On November 21st, his disappearance was made a subject of public comment in the press of the city of Phoenix, and on the morning of that day McCann notified his employer and the sheriff of Maricopa county that he believed that Falston had been murdered, for the reason that he (McCann) had an engagement to meet Falston at 9 o'clock which had not been kept by the latter. The evidence is in conflict as to the time when this statement was made by McCann. The testimony of McCann's employer tended to show that it was before 9 o'clock, and other evidence tended to prove a later hour. McCann then drove to the ranch where the brother of Falston was employed, procured the latter to go with him to Phoenix, and for two days following engaged, or pretended to engage, in a search for Kenneth C. Falston. In the course of that search, at a point some twenty-six miles northeast of Phoenix, there was discovered an overcoat, a muffler and a handkerchief identified as belonging to Kenneth C. Falston. Shortly afterwards McCann was arrested and taken to the office of the county attorney of Maricopa county, where, in answer to questions put by the county attorney, and others present, McCann made a lengthy statement concerning his association with Kenneth C. Falston and of the occurrences of November 19th and succeeding days. This statement was taken by a stenographer employed by the county attorney, and subsequently written out in typewriting. Thereafter McCann was brought before a magistrate and was discharged, inferably because the body of Falston had not been discovered.

In April, 1918, the body of a human being was accidentally discovered lying in a wash about twenty-six or twenty-eight miles northeast of Phoenix, and in the general vicinity of Scottsdale. The sheriff was notified, and in company with other officers immediately repaired to the place where the body was discovered, and the body was subsequently removed to an undertaking establishment in the city of Phoenix. When discovered the body was in a condition indicating that it had lain in the position where found for a long time. In the back of the skull there was a wound, evidently a bullet wound, and in the left temple two more wounds of a similar character. While the body was in the undertaking establishment, a portion of the skull was removed by the undertaker, the brain matter, which was in a dried condition, was examined, and from it were removed three bullets, one of one caliber and two of another. Upon the body were found a card showing the registration of Kenneth C. Falston under the Selective Service Draft Act (Act Cong. May 18, 1917, c. 15, 40 Stat. 76 [U.S. Comp. Stats. 1918, §§ 2019a, 2019b, 2044a-2044k]) at the place of his then residence, in the state of Oregon, and other articles which were identified as belonging to Falston. After the discovery of the body, McCann was again arrested, and his conviction followed. There was also evidence tending to prove that McCann, prior to the 19th of November, was in straitened circumstances, and that soon after that date both he and his wife expended considerable sums of money.

While this is by no means a complete statement of the facts, nor were the above matters established by uncontradicted evidence, it is sufficient for the understanding of the legal questions herein referred to. At the close of the evidence on behalf of the state, and again at the close of all the evidence, the defendant moved the court to direct the jury to return a verdict of not guilty, on the ground that there was not sufficient evidence to show either the corpus delicti, or to warrant the submission to the jury the question of whether the accused was guilty of the crime charged. The latter point does not seem to be insisted upon in this court. We have, however, read carefully the voluminous transcript of the testimony, and, while the evidence is wholly circumstantial, it is ample to warrant the conclusion reached by the jury. To undertake to set forth the numerous facts and circumstances tending to prove the guilt of the accused would unduly extend this opinion, and would be of no value in future cases. It suffices to say that a careful reading of the testimony leads to the conclusion that there was abundant evidence to warrant the verdict of the jury in that respect.

It is earnestly insisted that the evidence is insufficient to establish either that the deceased came to his death by criminal means or that the body found as above stated was that of Kenneth C. Falston. We think, however, there was ample evidence to justify the jury in finding against the appellant on both these points. As a common-sense proposition, the finding of the body of a human being at a remote and lonely spot, some distance from any traveled highway, lying upon the ground, with three bullets imbedded in the brain, evidently fired from two different weapons, and one wound in a position where it could not well have been self-inflicted, would justify any person in believing that death resulted from these bullet wounds. Certainly it cannot be said that the jury was not warranted in so finding. The identification of the body found by the brother of the deceased as that of Kenneth C. Falston, together with the registration card and other articles, also furnished a basis for the finding of the jury that the body so found was that of the person charged in the information to have been murdered.

At the time of his first arrest McCann was taken to the office of the county attorney, and there by that officer and other officers of the law present was questioned concerning his movements at and about the time of the disappearance of Falston and other circumstances surrounding that disappearance. Upon the trial, and as a part of the state's case in chief, witnesses then present testified to the statements made by McCann. The defendant testified in his own behalf, and on cross-examination counsel for the state read to the witness from a transcript of the shorthand notes taken by the stenographer at that time numerous statements claimed to be in conflict with his testimony given upon the direct examination. The defendant denied making some of the statements, and professed a want of recollection as to whether he made others. In rebuttal the state called the stenographer who took the statement, who was permitted to testify that the questions were actually put to McCann and answered by him as stated in the questions put on cross-esamination. It is now insisted that this examination was improperly permitted, and that the statements made were necessarily a part of the case in chief, and could not be used for the purpose of impeachment.

It is undoubtedly the rule that statements made by the accused may be shown as a part of the state's principal case, but this in no wise affects the rules pertaining to impeachment of the testimony of the accused, or the extent of the cross-examination to which he may be subjected. It is not claimed that the statements, if made, were not voluntary. The defendant by statute is made subject to cross-examination as any other witness, and a recognized method of impeachment of the testimony of any witness is by showing statements inconsistent with the testimony given upon the trial. The rule in that respect was strictly followed in this case, the foundation being properly laid. The questions put to the witnesses were properly allowed, and the evidence given in rebuttal, tending to show that the witness did make the inconsistent statements set forth in the impeaching questions, was properly admitted. That the state...