McCreight v. State, Criminal 800

• Decision Date: 01 April 1935
• Docket Number: Criminal 800
• Citation: 42 P.2d 1102,45 Ariz. 269
• Parties: W. A. McCREIGHT, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

42 P.2d 1102

45 Ariz. 269

W. A. McCREIGHT, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 800

Supreme Court of Arizona

April 1, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for a new trial.

Messrs Cox & Moore, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. P. H. Brooks Assistant Attorney General, Mr. John L. Sullivan, Attorney General, and Mr. Wallace A. Clark, Assistant Attorney General, for Respondent.

OPINION

LOCKWOOD, C.J.

W. A McCreight, hereinafter called appellant, was informed against by the county attorney of Maricopa county for the crime of murder in the first degree. To this information he pleaded not guilty. He was tried before a jury which returned a verdict of guilty of manslaughter, and after the judgment was rendered thereon he appealed.

There are some twelve assignments of error, which are properly grouped by appellant under appropriate propositions of law. Most of the assignments deal with various instructions given by the court, but we think it unnecessary to discuss these particular assignments at length, as the case must be determined on two other matters. It is sufficient to say that while a number of the instructions, if taken separately or in conjunction merely with part of the remaining ones, might be considered as erroneous, yet when they are considered as a whole we believe that the law governing the case was fairly stated in such a manner that the ordinarily intelligent juror would not have been misled as to his duty. The only point on which they are subject to serious criticism is that perhaps it was not made as explicit to the jury as it should have been that in order to limit the right of self-defense a defendant must not only have intended to provoke his adversary to make the first overt act, but he must have done something which would be reasonably calculated to so provoke him.

There are, however, two assignments of error which raise more serious questions. The first is that a certified copy of the transcript of the testimony of Loui Killen at a previous trial of the case was admitted in evidence without the proper preliminary showing. Ordinarily speaking, a defendant is entitled to be confronted at the trial with all witnesses whose testimony is offered against him. There is, however, an exception to this rule in Arizona, as well as in most other jurisdictions. Under certain circumstances, the testimony of a witness at a previous trial of a defendant may be offered in evidence under section 5058, Revised Code 1928, which reads as follows:

"5058. Use on second trial of testimony of deceased or absent witness. Whenever in any court of record the testimony of any witness in any criminal action shall be reported by an official court reporter and certified by him to be correct, and thereafter said witness shall die or be beyond the jurisdiction of the court in which the cause is pending, and his absence is not procured by the party offering the evidence, either party to the record may read in evidence the testimony of said witness in any subsequent trial or proceeding had in the same cause, subject only to the same objections that might be made if said witness were upon the stand and testifying in open court."

The question arises as to whether the conditions of the section just quoted were complied with before the transcript was admitted in evidence. It does not appear from the record whether any subpoena was ever issued for Killeen, or what, if any, effort was made by the officers to secure his attendance at the instant trial. So far as we can discover, the only showing made to sustain the admission of the transcript was the testimony of the missing witness' sister-in-law, Mary Gold, who stated that she knew that at the time of the trial he was in El Paso, Texas. On cross-examination, however, she gave as her reason for knowing this fact that she saw him when he left her house with his wife and another sister-in-law. Taken in the strongest manner in support of the state's case, this merely amounts to a statement by the witness that she knew the missing witness was in El Paso Texas, because he left her house with his wife, intending to go there. We have passed upon the question of what showing it is necessary to make in order to introduce evidence of the kind in question, in the cases of Valuenzuela v. State, 30 Ariz. 458, 248 P. 36, and Sam v. State, 33 Ariz. 383, 265 P. 609. In the Valuenzuela case, supra, we held that the issuance of a subpoena for the missing witness, and an affidavit by a deputy sheriff that h...