Robertson v. Territory of Arizona

• Decision Date: 02 April 1910
• Docket Number: Criminal 272
• Citation: 13 Ariz. 10,108 P. 217
• Parties: WILLIAM ROBERTSON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

108 P. 217

13 Ariz. 10

WILLIAM ROBERTSON, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 272

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Graham. Frederick S. Nave Judge. Affirmed.

The facts are stated in the opinion.

Stoneman & Jacobs, W. K. Dial and Kibbey, Bennett & Bennett, for Appellant.

John B Wright, Attorney General, for Respondent.

OPINION

KENT, C.J.

-- It is assigned as error that the trial court erred in not granting a motion for a change of venue because of the alleged prejudice against the defendant in the community. This is a matter that rests largely in the discretion of the trial court. We have examined the affidavits submitted on both sides upon the motion, and we are led to the conclusion that the trial court in denying the application for change of venue did not abuse the discretion vested in it. Elias v Territory, 9 Ariz. 1, 76 P. 605.

The second assignment of error is in relation to the following charge of the court: "The defendant has offered himself as a witness in his own behalf. The statutes give him that right, and you should consider his testimony as you would that of any other witness. However, in determining the credit to be given his testimony, you may consider the very great interest he must have and feel in the result of this case, and the effect which a verdict would have upon him, and determine to what extent, if any, such interest may color his testimony or affect his credibility. If his statements be convincing and carry with them belief in their truth, you have the right to receive and act upon them. If not, you have a right to reject them." This charge in this precise language has been twice approved by this court. Halderman v. Territory, 7 Ariz. 120, 60 P. 876; Prior v. Territory (Ariz.), 89 P. 412. While the giving of this instruction was, therefore, not error on the part of the trial court, we believe that in some respects it is an undesirable instruction to be given and we recommend to the district courts that its use be discontinued.

Exception is taken to certain portions of the instructions given by the court to the jury. A statement of the facts in the case is necessary in order that the contention of the appellant may be made clear. On the day of the homicide there was in progress in the town of Safford, in Graham county, a celebration of the independence of the republic of Mexico. A large crowd had assembled in the town attracted by the celebration, and some of the persons participating therein had become intoxicated. One Wayne Pursley, of whose homicide the appellant was convicted, was among those in this condition. The deceased had a reputation for fighting and quarrelsomeness when drunk. He was a robust man of great strength. He had had a violent altercation with one Campbell, and was swearing and using violent and threatening language in the presence of the people. His attitude was that of a drunken disturber of the peace, threatening whosoever in any way opposed him. The appellant, Robertson, was at that time the marshal of the town of Safford. He was not a man in robust health. To him Campbell, after having been severely maltreated by the deceased, appealed for protection against further assaults by the deceased. At the time there was excitement, tumult, and disorder on the street. Appellant, responding to the appeal of Campbell, said: "I will go out and stop him -- talk to him" (meaning the deceased). Appellant approached the deceased, who was demanding of the people holding him to be let loose to get at Campbell, and accosted him saying: "Here Wayne, that won't do. You can't do that. There are too many women and children on the street to be talking that way. You will have to go with me." Deceased said he would not go. Appellant then placed his hand upon the deceased, who knocked appellant down. Appellant got up, and a bystander attempted to calm the deceased, and the deceased knocked the bystander down. Appellant again took hold of the deceased and they clinched and fell, the appellant on top. The crowd then interfered, pulled the appellant off, rescued the deceased from the appellant, and took him away to a neighboring house. The appellant went to a saloon and got his revolver, and called upon a friend of the deceased to assist him, saying to him: "I have got to get him. Will you go with me?" Meanwhile the friends of the deceased had been unable to keep him in the house where they endeavored to have him remain to have the wounds that he had received in the contest with Campbell further dressed. The deceased, however, resisted the efforts of his friends to restrain him indoors, insisting that his injury was trifling, and went on through the house and out into the yard of the house, where the appellant came up to him. The deceased was still in a violent mood. The appellant addressed the deceased as an officer, saying that the deceased must come with him, and referred to his conduct. A bystander asked that the deceased might be allowed to return to the house to have his wounds further dressed. The appellant said that he would take the deceased to the doctor or anywhere else that he wanted to go. Up to this time there is no evidence that appellant exhibited anger or made any demonstrations or threats indicative of any other purpose than to have the deceased submit quietly to his authority as an officer. The deceased said, however, that the appellant should not arrest him, and, according to some testimony, applied opprobrious epithets to him and struck at him. At this juncture the brother of the deceased interfered, and many other people of the crowd rushed in, and there was confusion. The brother of the deceased told the appellant that he should not arrest the deceased, and then the appellant pulled his gun. The brother grabbed the gun, and attempted to wrest it from the officer. In the meantime the deceased was striking at the officer with an open knife. The deceased, his brother, and the appellant were all together engaged in a struggle. The appellant struck the brother of the deceased over the head with his gun and the brother fled. The deceased was still fighting with the appellant. The appellant struck him twice over the head with the gun, but the blows did not stop the onslaught of the deceased. The officer became exhausted and fired upon the deceased, and still the deceased did not stop, and he again fired, and the deceased fell mortally wounded, and died almost instantly. The foregoing statement of facts we have summarized from the statement thereof in appellant's brief. It presents the defendant's case in the most favorable light. Many of the facts as stated are contradicted by the testimony of other witnesses, and a number of witnesses testified that at the time the fatal shot was fired the deceased was retreating and had declined further struggle; but there is evidence in the record tending to establish the facts as appellant claims they occurred.

There were several instructions requested by the defendant, all of which were given by the court, except that in one instance a sentence was stricken by the court from an instruction as requested. The court charged the jury that the indictment charged the appellant with the crime of murder alleged to have been committed upon the person of Pursley. The usual instructions were given respecting the necessity of the joint operation of act and intent, the presumption of innocence, the necessity of the territory proving all of the material allegations of the indictment beyond a reasonable doubt, defined a reasonable doubt, the province of the jury with respect to the evidence, and defined the various degrees of homicide. At the request of the defendant, the jury were also instructed that the deceased was in the actual commission of a misdemeanor in the presence of the appellant who was at the time a peace officer, to wit, the town marshal of the town, but limited the effect as to the time of the commission of the misdemeanor to the time when the deceased was in the street, and while the incidents covered by the testimony which occurred in the street were in progress. The jury were told that...