Ryan v. Territory of Arizona

• Decision Date: 20 March 1909
• Docket Number: Criminal 270
• Citation: 12 Ariz. 208,100 P. 770
• Parties: ALBERT RYAN, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

100 P. 770

12 Ariz. 208

ALBERT RYAN, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 270

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan Judge. Reversed and remanded.

The facts are stated in the opinion.

Ross &amp Sullivan, for Appellant.

A. C Baker, and Wm. B. Cleary, of Counsel.

Under the statute it was absolutely necessary for the jury to be convinced of the fact that Ryan made an attempt to use the revolver to inflict a violent injury upon the person of Burns. People v. Sylva, 143 Cal. 62, 76 P. 814; State v. Godfrey, 17 Or. 300, 11 Am. St. Rep. 830 20 P. 625; People v. Dodel, 77 Cal. 293, 10 P. 484.

At common law as well as under our express statute a person has the same right of self-defense in defending himself from great bodily injury as he has in defending his life. Pen. Code, par. 181, Rev. Stats. Ariz.; 25 Ency. of Law, p. 263.

Under the old rule which excluded the testimony of the parties in interest, a person's intention could only be ascertained or inferred from his acts and words at the time in question. That rule is now abrogated and the party is now entitled to testify what his intention was in doing the act in explanation of the act. People v. Farrell, 31 Cal. 576; 1 Wigmore on Evidence, par. 581; People v. McMakin, 8 Cal. 547.

E. S. Clark, Attorney General, for the Territory.

OPINION

CAMPBELL, J.

-- Appellant was convicted of the crime of assault with a deadly weapon. The circumstances surrounding the commission of the offense, as they appear from the testimony of the witnesses for the territory, are that Ryan went to the mining property of the Arkansas and Arizona Copper Company as the representative of a labor organization, threatened to close down the work at the mines, and endeavored to induce the miners there employed to leave their employment. While so upon the property of the mining company, its superintendent in charge, one Frank Burns, repeatedly ordered him to leave the premises, which he refused to do. Burns, to enforce his order, walked toward Ryan, carrying in his right hand, at the side, a bar of steel one inch in diameter, and twenty-four inches in length. Ryan backed away from Burns for some distance, when, stepping into a slight depression, he stumbled and partially fell, and, as he recovered, drew from his pocket a loaded revolver which he pointed at Burns, at the same time directing him to throw down the steel, telling him that he was prepared to protect himself. Burns complied with the direction as to disposing of the steel. Thereafter the defendant left the premises of the mining company. The defendant, however, testified that Burns, instead of carrying the bar of steel at his side, as claimed by him, had it upraised as though he were about to strike him with it, although he was not forcibly resisting ejectment, and that at the time he drew the revolver Burns was rushing upon him and attempting to strike him with the steel, at the same time calling him a vile name, and telling him he would kill him. The defendant, after having testified as thus indicated, was asked the following question: "Please tell the jury why you drew the gun at that time." The district attorney objected to the question, which objection was sustained by the court, with the remark that it was for the jury to say whether the circumstances were such as to justify the drawing of the gun. The following question was also asked the defendant: "Did you have any intention, at any time, of injuring Mr. Burns in any way, shape, or form?" An objection to this question was also sustained, for the reason, as stated by the court, that "he has already stated that. The intent is to be inferred from the facts and circumstances. They are all disclosed to the jury. I think that is sufficient." Appellant assigns both rulings as error. He also challenges the sufficiency of the evidence, on the part of the prosecution, to warrant a conviction. Upon this latter point we entertain no doubt. The defendant was a trespasser of the most aggravating character. The superintendent of the mine was well within his rights in ordering him off the premises, and, upon his refusal to go, in ejecting him. In ejecting him, however, he was not justified in using unnecessary force, but, so long as he used only reasonable force and means to eject him, Ryan was not entitled to resist. If, as claimed by Burns, he was not making, or offering to make, use of the steel bar as a weapon, Ryan's act in drawing and pointing the revolver for the purpose of enforcing his command that Burns drop the steel was wholly unjustifiable. If it be true, as contended by appellant, that in order to constitute the offense of assault, Ryan must have entertained an intention to shoot Burns if his demand was not complied with, we think the jury was justified in inferring from his conduct that he had that intent.

There is a diversity of opinion upon the question whether, where a loaded revolver is drawn and presented, accompanied by remarks which indicate an intention to fire it, so that the person at whom it is presented may reasonably fear that such use will be made of it, the actual intent harbored by the accused is at all material. Many authorities hold that an assault is committed, regardless of whether there was any intent to shoot, while others hold that the intent with which the weapon is drawn and pointed is the gist of the action, and that a conviction of assault is not justified in the absence...