Sheek v. State
| Decision Date | 08 May 1918 |
| Docket Number | Criminal 432 |
| Parties | FAY SHEEK, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the county of Apache. George H. Crosby, Jr., Judge. Affirmed.
Mr. A S. Gibbons and Messrs. Jones & Jones, for Appellant.
Mr Wiley E. Jones, Attorney General, Mr. W. P. Geary, Mr. Geo W. Harben and Mr. Louis B. Whitney, Assistant Attorneys General, and Mr. Gilbert E. Greer, County Attorney for Apache County, and Mr. C. B. Wilson, County Attorney for Coconino County, for the State.
This appellant was informed against for the crime of murder; the result of his trial being a conviction of manslaughter. The appellant was a cowboy and, in the course of his employment, was herding some cattle at the ranch of Leonard Olsen, the victim of the homicide. These cattle got into a field of oats belonging to Olsen, and an Indian boy employed by Olsen set a dog upon the cattle to drive them out. In his testimony, the appellant gave the particulars of this incident in connection with and leading up to the act of killing. It appears from appellant's testimony that on this occasion he went into Olsen's house for the purpose of finding him, but Olsen was absent therefrom. According to his testimony, appellant's conduct in going into the house angered Olsen very much, the latter accusing appellant falsely of breaking open one of his trunks while in the house; that Olsen became very hostile toward appellant on account of this and such hostile conduct on the part of Olsen was the cause of the homicide, the act being committed in self-defense. In rebuttal of this testimony as to the incident arising because of the cattle getting into Olsen's oat field, the prosecution put on the stand the Indian boy who set the dog after the cattle. This lad was a little Navajo Indian about 13 years of age and called by name Hostien Soo. The defense objected to the testimony of this lad being received because of his youth and his inability to understand the obligation of an oath. Before admitting his testimony, the court examined him quite carefully as to such matters. After the examination, and in overruling the objection to the competency of the witness, the court made these observations:
"The court has had considerable experience with Indians, and, while Navajo children do not understand what an oath is as well as the white children, yet when you explain to them what it is, and tell them they must tell the truth, that they generally do so; and, furthermore, the weight of the testimony is for the jury, so that the objection is overruled."
In the course of his testimony, Hostien Soo stated that at the time the cattle got into the oat field he was afraid to drive them out and set the dog on them; that appellant saw the dog go after the cattle and "he looked like he was mad"; that appellant then shook a rope at Hostien and pointed a pistol at him in a threatening manner. Appellant then went into Olsen's house, and, after looking around the house, came out in an angry mood, got on his horse, and rode away. We do not see any abuse of discretion on the part of the trial judge in admitting the testimony of Hostien...
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