Roman v. State

• Decision Date: 29 October 1921
• Docket Number: Criminal 508
• Citation: 23 Ariz. 67,201 P. 551
• Parties: THOMAS ROMAN, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

201 P. 551

23 Ariz. 67

THOMAS ROMAN, Appellant, v. STATE, Respondent

Criminal No. 508

Supreme Court of Arizona

October 29, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Messrs Thalheimer & Hart, for Appellant.

Mr. W J. Galbraith, Attorney General, and Mr. R. E. L. Shepherd County Attorney, for the State.

OPINION

ROSS, C. J.

By information the appellant was charged with the crime of murder, committed on January 11, 1921, in Maricopa county, by shooting and killing one Thomas Hintze. Thereafter, on February 16th-19th, 1921, the appellant was tried and convicted of murder in the first degree, and his punishment was fixed at death. He appeals from the verdict and judgment of conviction and from the order overruling his motion for a new trial. He assigns several errors which he claims occurred in the course of the trial. The first two are so intimately related we will consider them together. They are:

"(1) The information upon which defendant was tried and convicted was not a legally filed information, and the court did not have jurisdiction under said information to try and convict the defendant.

"(2) The defendant was never legally arraigned under such information, nor did he waive such an arraignment."

These alleged errors are predicated upon the following facts: The county attorney filed two informations against the defendant, one on February 2, 1921, upon which defendant was arraigned the same day and given until February 5th to plead. Neither on February 5th, nor on any other day, was defendant's plea to the first indictment taken, but on said day he was arraigned on a new information, and given until February 7th to plead. On the convening of court on February 7th the county attorney asked to be allowed to withdraw the first information and to file the second one, and to the second he then pleaded not guilty. The record discloses that defendant was charged with the same offense in the informations as in a complaint theretofore filed before a committing magistrate upon which he waived preliminary trial. At the trial and at the time when the prosecution was about to offer evidence upon the charge in the information, the appellant objected to the introduction of any testimony "on the grounds that the court does not have jurisdiction of the matter because of the fact that the defendant has never been legally committed or had a preliminary hearing or waived any such preliminary hearing as provided in article 2, section 30, of the Constitution of the state." The defendant made no objections to the second information at the time of his arraignment, nor at the time that he pleaded thereto. The statute (section 972, Penal Code) provides that an information may be set aside on motion on two grounds: First, that the defendant has not been legally committed by a magistrate; and, second, that the information is not signed by the county attorney. Under section 973, Id., a failure on the part of the defendant to interpose a motion to set aside the information before he pleads precludes him from thereafter objecting that he was not legally committed by a magistrate, or that the information was not signed by the county attorney. If the defendant felt that his rights had been impaired or disregarded by the county attorney, he should have adopted the method provided by the statute to signify his dissent. Not having pursued the method provided by the statute, he will not be permitted to raise the objection upon the offer to introduce evidence. Quen Guey v. State, 20 Ariz. 368, 181 P. 175; Thomas v. Territory, 11 Ariz. 184, 89 P. 591; People v. Stacey, 34 Cal. 307; People v. Bawden, 90 Cal. 195, 27 P. 204.

The provision of the Constitution the defendant asserts was violated, forbids the prosecution of any person for felony by information without his having had a preliminary examination or waived such examination. The record in this case clearly shows that defendant waived the preliminary examination for the specific offense with which he was charged and convicted. We take it that the whole of defendant's grievance is that the county attorney was permitted to withdraw the first information filed against him and to file another information charging the same offense. We cannot see how this in any manner could have prejudiced his rights. No issue had been joined on the first information, as he had not pleaded to it. At most what was done was no more than an immaterial irregularity.

The next assignment is directed to the testimony of Helen Teeter, who was testifying in behalf of the state, and to the language of the court in that connection. We give the question and answer, and also the court's remarks as they appear in defendant's assignment.

"Q. Do you recall anything that happened there at that time concerning the shooting? A. Yes, sir.

"Q. Go ahead in your own words and tell what you saw and heard at that time and place. . . . A. My father pushed the door open . . . and said, 'What is the matter, man?'

"Mr. Hart: We object to what the father said, if the court please.

"The Court: Just a minute, please. The objection is overruled. This was addressed to what I would presume to be the defendant."

It is obvious that it cannot be determined that the witness' answer or that part of it to which defendant objected was competent or not, nor can it, for that matter, be determined whether the remarks of the court were error from an inspection of the assignment. In other words, the assignment does not contain enough of substance upon which to base a decision. The objection assigns no reason why what the father said was not competent or relevant or material. No motion to strike the answer was made, nor were the remarks of the court objected to nor asked to be stricken. For the failure to specify wherein the answer of the witness was improper or the failure to object to the court's remarks so that he might correct them if erroneously made, we might well refuse to examine the assignment, but in view of the gravity of the charge against the defendant, involving as it does the death penalty, we will treat the assignment as being sufficient to present the question of the competency of the witness' answer, as well also the right of the court to make the remarks complained of. Before Helen Teeter was put on the stand her father, D. S. Teeter, had testified. In his testimony he had stated that while he was eating his supper at about 6:30 P.M. on January 11, 1921, he heard some 10 or 15 shots fired, and that he and two or three others of his family went to the door of his house facing on the alley when he saw defendant; that he stepped outside, and the defendant came within about six feet of him and said, "For God sake, get out of my way," and "I said to him, 'What is the matter, man?' and he said, 'For God sake, get out of my way.'" D. S. Teeter, it will be seen, testified positively that he was speaking to the defendant when he said, "What is the matter, man?" And this is the language repeated by the daughter to which the above objection was made.

The defendant in his brief insists that the evidence was hearsay, and its admission for that reason was error. This cannot be so, inasmuch as the language was directed to the defendant and was uttered in his presence. There had been evidence by Mr. Teeter that his remark was addressed to the defendant, and the comment of the court was doubtless based upon that positive testimony. The court was clearly right in overruling the objection, and in view of the positive identification of the defendant as the person to whom it was addressed, in presuming that the remark was addressed to the defendant.

Defendant's next assignment is in the following language:

"While the witness F. L. Goulette was testifying for the state, the following question was asked:

"'Q. Did you find a bullet hole there? A. Yes, sir.

"'Mr. Thalheimer: If your honor pleases, we object to the witness testifying, unless he testifies as to the character of the indenture upon the front of the door.

"'The Court: That is what he is going to do.

"'Mr. Thalheimer: He said a bullet hole.

"'The Court: Counsel has said a bullet hole. He is asking about a bullet hole. I think the objection may be overruled. He may answer.'"

Defendant argues in his brief that the above evidence was objectionable because it was the opinion or conclusion of the witness. That may be true, but no such objection was made at the time, nor was it objected that the witness was not competent as an expert. In other words, the question which he now presents was never presented to the lower court for a ruling.

Two witnesses, Henry R. Swink and Harry J. Saxon, testifying in behalf of the prosecution, were permitted, over the objections of the defendant, to state a confession of one Victoriano Martinez and the defendant, made at Calabasas near the Mexican line, at the time of their apprehension. The admission of this testimony, it is earnestly urged, was error. The confession and the circumstances under which it was made can be best understood and appreciated if we relate briefly the facts of the crime and circumstances of the arrest of the defendant.

On the evening of January 11, 1921, at about 6:30 o'clock, two Mexicans, operating together, held up and robbed what is known as the Baber-Jones Store in the city of Tempe, Maricopa county. One of them stood guard on the outside with a rifle while the other entered the store and held up Mr. H. C. Baber, a member of the firm, and took from him about $290. During the time that it took to rob the store a great many shots were fired. The man on the outside had a rifle and was shooting indifferently at everybody that came in sight, while the man in...