Rascon v. State, Criminal 831

• Decision Date: 01 May 1936
• Docket Number: Criminal 831
• Citation: 57 P.2d 304,47 Ariz. 501
• Parties: FRANK RASCON, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

57 P.2d 304

47 Ariz. 501

FRANK RASCON, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 831

Supreme Court of Arizona

May 1, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. S B. Rayburn and Mr. F. Preston Sult, for Appellant.

Mr John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for Respondent.

OPINION

McALISTER, J.

This is an appeal by Frank Rascon from a conviction of murder in the first degree and a judgment and sentence imposing the death penalty. He assigns eight errors and discusses them under five propositions of law, the correctness of which depends wholly upon the facts adduced at the trial.

It appears from the record that on the afternoon of June 11 1935, between 1 and 2 o'clock, the defendant, Frank Rascon, his wife and father, riding in a Ford truck, drove up to the Roach Roberts' ranch house located about eight miles southwest of Beardsley, Maricopa county, Arizona, and that as they approached it the defendant, who was driving, began cursing one Joe Romero, who was employed there as a cow hand, and ordering him to open the gate. Notwithstanding his manner and language, Romero went out and opened the gate for him and as soon as his car stopped he and Romero began fighting, the latter striking him first and before he was out of the car, blacking his eye. His nose was bleeding also and before they had fought very long Mr. Roach Roberts separated them, sent Romero back to the house where he began washing dishes and, with the help of the wife and the father of Frank Rascon, succeeded in getting him back in the car, when they drove off. After the fighting had stopped the father picked up a .22 rifle lying in the front of the car and, seeing it had no cartridge, asked for one, but it was taken from him and hidden by Mr. Roberts who testified that the defendant had been drinking but was not drunk and that he (Roberts) told him to go away from there and stay away. It appears that the father, Manuel Rascon, had worked for Mr. Roberts in the same capacity as Romero up to April 6, 1935, when his services were discontinued, and that he, with the son and his wife, camped near the Roberts' house for a time after that and then moved to a place about one and one-half miles northwest of there where they lived until June 11th.

In less than an hour after they left, while Mr. Roberts, his small son and Joe Romero were some distance from the house fixing a fence, the defendant returned to the ranch house alone, yelling as he came, and Mr. Roberts, seeing him went where he was for the purpose of keeping him and Romero apart. He had a knife in his hand, asked where Romero was and, when informed by Mr. Roberts that he was working on a fence, said: "I am going to kill that God damn Romero." He repeated this statement at least a half dozen times, whereupon his wife drove up in a car, got him in it and took him home again without his seeing Romero at all. Right after that Mr. Roberts left the ranch and went home, the gate he and Romero were fixing having been finished.

Nearly an hour later Romero went a short distance from the Roberts' house to where one Walter McCloud, with the help of two boys, Clem Miller and Fred Nowland, were extracting honey, and asked McCloud if he would let Nowland help him start the engine. Nowland was permitted to do so and about 5 o'clock McCloud went over to the pump where they were and, so far as the record discloses, he and those with him were the last persons, other than the defendant and perhaps his father, to see Romero alive.

About 9:30 the next morning Isidor Ortiz, accompanied by several other persons, drove to the Roberts' ranch to visit Romero and upon arriving there found his body lying on the ground about fifty feet southeast of the house face downward. They immediately reported the fact to the sheriff's office and by 11 o'clock two deputies, Bill Levy and Joe Maier, together with the coroner, Frank Patterson of Glendale and Deputy County Attorney Melbourne Hill, were out there, and, after viewing the scene of the killing and the body, the latter was taken to Glendale where an autopsy was performed. It disclosed that the deceased had been shot through the lungs and the heart, the bullet's point of entrance, according to the physician and one of the deputies, being on the right side about the level of the ninth or tenth rib near or on the mid-axillary line, and its point of exit being about the level of the third or fourth rib on the left side near the same line. He also found superficial lacerations on the leg, feet, thigh and arms, and fingernail marks on the right arm and some superficial contusions on the face.

From the Roberts' house the officers went to the place where the defendant had been living but found no one home, the camp appearing to have been recently left or deserted. Frank and his father had gone to Tucson the night of the 11th, to Nogales the next day, across the line that night into Mexico where they remained for a month, or until the 11th or 12th of July, when he came from Magdalena to Nogales and over the line into Arizona, where he was arrested by three immigration patrolmen. In reply to a question by them, he said that he was the man who had shot Joe Romero near Phoenix.

A little later he told Bill Levy and Tony Orbuena, deputies of the sheriff of Maricopa county, who had gone to Nogales for him, E. B. Romero, a brother of the deceased, and a Mr. White, a deputy sheriff of Santa Cruz county, how the killing occurred. Bill Levy testified as follows:

"We asked him what he and killed him for and he told us once that Romero had threatened to kill him, and we asked him what he left for. He said, well, they might cause him some trouble, the reason he left, and we asked him how he did it. He said he had trouble that day with Romero and then he went back to his cabin and he started down then to get some water and then he thought about what Romero told him, that Romero would kill him if he went back on the ranch, so we went back to his cabin and got his rifle and put it in his truck and went down to get some water. he said when he drove in the gate, Joe Romero was down at the pump house, and he said Joe began to pull like he had a gun down in here (indicating), and he said he told him, 'Joe, I want to talk to you,' and Joe kept coming and he fired one shot at Joe, then he said Joe kept coming towards him, and he hit him with the butt of the rifle, then Joe ran around the house and started down in the field and he shot the second time and hit him....

"He told us he was running when he was shot, running from him."

The day following his return to Phoenix the same two Maricopa county deputies, together with Deputy County Attorney Melbourne Hill, took him out to the Roach Roberts' ranch where he voluntarily reenacted the killing for them. What he did and said then was a little more in detail than his atatement at Nogales but substantially the same, Tony Orbuena's narrative thereof at the trial being as follows:

"He said be came to Glendale, him and his father and his wife, he called her his wife anyway, came to Glendale for some groceries; that Roach Roberts promised his father a day's work rounding up some cattle, and he came to Glendale and he drank a few beers and he took half a gallon of wine with him, and when he got up to Torres' (Roach Roberts') ranch he called this deceased, Romero, out and he wouldn't come out, and he laid on the steering wheel and pretty soon Romero comes out and the fight started. He said that Romero grabbed him by the hair and pulled him out of the car and the fight started. They separated some way or other and he went home, his wife and his father. Roach got him to go home. Well, he got to his camp about a mile from Roach Roberts' place and he laid down a while under a tree there, and his father went out to look for some horses and he wasn't gone over ten or fifteen minutes, and he came back and he says, 'Let's go get some water.' So they put on a three-gallon can and a five-gallon can on the truck and they started the truck and remembered that Pomero told him, 'If you come back here I am going to kill you. Don't come back here anymore.' So he throwed a rifle on the truck, a 45-60; so he started to the Torres' ranch, Roach Roberts' place; so when he got to the big gate his father got off and opened the big gate and he drove in right about the middle of the center of the fence, they got in there and that this Romero was pumping water, and that Romero started toward him, motioned like he was drawing something, but he didn't see nothing, that he drawed out of his bosom here, and he come towards him about fifteen or twenty feet past a little gate, and then he said, 'I shot at him and missed him and then he came on, kept on coming towards me, and I didn't want to shoot him any more, but he got to me and I hit him with the gun twice. Then he got away from me some way or other and walked by where the horse was tied. He untied the horse and led him a little ways, and then went around the east end of the house and went through a little gate. He said, "I am going to show you how to shoot" and he traveled on and then he opened another big gate, when he turned around and motioned like he was going to grab something out of his bosom, I shot, I shot at him and hit him there. And then he walked five or six steps and dropped.'"

The version of the killing given by the defendant at the trial varied but little from the statements made by him to the officers. He testified that when they had the first trouble at the Roberts' ranch that day Romero told him that he would kill him if he came there again and due to this he placed his...