Shepard v. State
| Decision Date | 19 June 1925 |
| Docket Number | Criminal 613 |
| Citation | 28 Ariz. 391,237 P. 182 |
| Parties | JOYCE W. SHEPARD, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.
Mr Herman Lewkowitz and Mr. Harold J. Janson, for Appellant.
Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson, and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.
The appellant (hereinafter referred to as defendant) appeals from a judgment of conviction of first degree murder, with punishment fixed at life imprisonment. He assigns three errors; and to consider such errors it is necessary to state not in detail, but in a general way, some of the salient facts surrounding and leading up to the killing.
The deceased, Sam Hall, and defendant were both farmers, living on adjoining farms, near Cashion, in Maricopa county. Until about July, 1924, they were friends, and from time to time exchanged work. They had differences in July which culminated in the shooting and killing of Hall on August 11, 1924. Their troubles were over a patch of cotton situate on the Hall farm, but claimed by both. At about 8 o'clock in the morning of the last-named date Hall and Mrs. Hall, from their house, saw defendant, who lived some three hundred yards from the cotton patch, leave his home going in the direction of the cotton patch, and carrying in his hands a shovel and a shotgun. The deceased thereupon proceeded to the cotton patch; his wife following a few feet behind. The evidence is in conflict as to what was said and done when the deceased and defendant came close enough to talk to each other; the contention of the prosecution being that defendant was tearing an opening for a gateway in fence around cotton, and when told by deceased to quit it he reached for his shotgun, which was standing nearby, whereupon deceased said, "Here I am, shoot; I am unarmed," and defendant then shot deceased, inflicting wounds from which he died soon thereafter without speaking. Thereupon defendant removed the exploded cartridge from the gun and pointed the gun in a threatening manner at Mrs. Hall, who fell to the ground behind a bush. Defendant then ran away. The defendant's claim at the trial was self-defense; he stating that, at the time he shot, deceased had grabbed a six-shooter which he was carrying on his person.
It is obvious from the verdict that the jury did not place any confidence in the plea of self-defense or in the evidence in support thereof; but, on the contrary, the jury must have believed defendant's act was without excuse or justification, and deserving of the very high penalty of life imprisonment. The jury's decision and its binding effect is not questioned, and, unless the court erred to the prejudice of the defendant in the course of his trial, the judgment must be affirmed.
It is said, however, that the admission in evidence, over defendant's objection, of a shotgun shell and shotgun wadding found the same day, where, or near where, defendant stood when he shot deceased, was prejudicial error. The objection to this evidence at the trial was that it had not been properly identified, but here the objection is that it was not shown that the ground and surroundings were the same when these articles were found as they were at the time of the homicide. The defendant, having abandoned the grounds of objection as made below, must be regarded as conceding that the shell and wadding were properly identified with the gun he used to shoot the deceased, and, that being established, the objection here urged for the first time, even if true, would be immaterial.
This evidence was introduced by the prosecution for the purpose of corroborating the testimony of Mrs. Hall, to the effect that defendant removed the exploded shell after shooting her husband and menacingly pointed the gun at her. To meet this inference defendant testified that he had on many occasions hunted rabbits at or near the place in question, and offered in evidence a shotgun shell that had been found at or near there by his brother, at 3 o'clock in the afternoon of ...
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