State v. Aldrich, 1027

• Decision Date: 22 December 1952
• Docket Number: No. 1027,1027
• Citation: 75 Ariz. 53,251 P.2d 653
• Parties: STATE v. ALDRICH.
• Court: Arizona Supreme Court

Page 653

251 P.2d 653

75 Ariz. 53

STATE v. ALDRICH.

No. 1027.

Supreme Court of Arizona.

Dec. 22, 1952.

Warren H. Lynch, of Tucson, for appellant.

Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., F. Lewis Ingraham, County Atty., and William W. Nabours, Deputy County Atty., Yuma, for appellee.

PHELPS, Justice.

The appellant was convicted on two counts of an information charging him (1) with an assault with a deadly weapon, and (2) with resisting public officers in the discharge of their duties in attempting to place him under arrest pursuant to command of a valid warrant which they then and there had in their possession.

From the judgment and sentence pronounced thereon this appeal is being prosecuted.

The facts are that appellant's wife had sworn to a complaint on December 6, 1951, charging him with an aggravated assault upon her. A warrant issued thereon. The warrant was placed in the hands of Deputy Sheriffs Winford B. Kelly and William N. Meador for service the next morning, to wit, on December 7. Investigation disclosed that appellant had fled. Upon being informed by his wife the evening of December 14 that appellant was at home the officers went to serve said warrant.

They were met outside the house by appellant's wife and after some conversation were invited in. Upon entering the small living room dimly lit by a kerosene lamp located in the kitchen, his wife called for appellant, who was in an adjoining bedroom, to 'come on out, Harold, there is a couple of men to see you.' Appellant came to the door with a small baby in his left arm. The right hand was not visible to the officers except as hereinafter stated because it was kept behind a curtain which Mrs. Aldrich had hanging over a portion of the door between the living room and bedroom. Officer Kelly testified appellant held a six-shooter in his right hand which he kept pointed at the officers during the entire time they were in the room. Aldrich and the officers were acquainted with each other. Officer Kelly informed appellant that they had a warrant for him and asked him to come along with them. Appellant replied, 'Don't come any closer; I am not going.' The officers, according to Mrs. Aldrich, were four or five feet from appellant at the time. They tried to persuade appellant to go with them. Finally he said, 'Now, you can go on and don't come back after me; I am not going.' The officers left and later, to wit, on December 16 they arrested appellant in the 1900 block on Tenth Avenue in Yuma upon a warrant based upon the complaint in the instant case. Defendant then offered no resistance but requested to be taken to his home and let him get his gun and he would shoot it out with them.

On that same day the officers went to appellant's home and after some difficulty procured from Mr. Aldrich the gun with which it is alleged that assault upon them was committed. The gun is a .32 caliber automatic. At the time it was given to the officers by Mrs. Aldrich there were seven loaded shells in the clip and one in the chamber of the gun. Officer Kelly testified that on the night of December 14 when appellant stood in the door between the two rooms of his home with his right hand behind the curtain he heard the safety click off and he reached over and felt the gun through the curtain and determined that he held a gun in his right hand, and as he released the gun and withdrew his hand the curtain swung to one side and he clearly saw the gun.

Mrs. Aldrich withdrew her complaint against appellant on December 15 and on that date Officer Kelly filed a complaint against appellant upon which the information in this case was based.

Appellant represented himself at the trial in the superior court but has counsel here who has presented five assignments of error, each of which he claims constitutes grounds for reversal. We think it desirable to set out the assignments in haec verba.

1. The court erred in failing to allow the defendant the right to show prosecution's witness Winford B. Kelly's motives, bias, and interest in the matter.

2. The court erred in openly reprimanding the defendant herein in the presence of the jury concerning his failure to employ counsel and that said reprimand being directed to the defendant himself, adversely affected the jury.

3. The court erred in volunteering the statement during the course of defendant's cross-examination of prosecution's witness William N. Meador, to wit: 'I don't think this would help the jury in any degree. Proceed with another question.'

4. The court erred in sustaining prosecution's general objection to defendant's question to defendant's witness, Melba Aldrich, concerning who encouraged her to have a warrant made out for the defendant's arrest.

5. The court erred in allowing the case to go to the jury on the assault with a deadly weapon count as the State failed to prove that defendant had any present ability to make such an assault, to wit: that the gun was loaded at the time of said alleged assault.

We will consider these assignments according to subject matter. The first and fourth are based upon the ground that the court refused to allow defendant the right to show the motives, bias and interest of the witness Winford B. Kelly. These assignments are based upon the following cross-examination of the witness Kelly and direct examination of Mrs. Aldrich by defendant:

'Q. Could it be that perhaps you had an ulterior motive (in serving this warrant)?'

An objection interposed by Mr. Nabours was sustained. Mr. Aldrich then asked Officer Kelly:

'Q. Did you know my wife prior to speaking to her on this night of December 14, 1951? A. Yes, I did.

'Q. What was the extent of that acquaintance? A. She worked up at the Western Fashion Store while I was employed there.

'Q. Did you ever become a little better acquainted than just a casual acquaintanceship? A. I worked with her, is all.

'Q. Perhaps, Mr. Kelly, you had personal reasons for liking to see me in jail.

'Mr. Nabours: Your Honor, I object to that.

'The Court: Objection sustained.

'Mr. Aldrich: Your Honor----

'The Court: Let's have no debate.

I don't like to debate. Proceed.'

And again on direct examination of Mr. Kelly, appellant asked the following questions:

'Q. Would you kindly tell the Court why on this criminal complaint a change has been made here from a revolver to a .32 caliber automatic pistol?

'Mr. Nabours: I object to that, if your Honor please. It is immaterial.

'The Court: The objection is sustained.

'Q. But yet this change was made after an automatic has been taken from the residence of the defendant; is that right?

'Mr. Nabours: I make the same objection to that question.

'The Court: The objection is sustained. It is assuming a fact not in evidence.

'Mr. Aldrich: Your Honor, may the jury take a look at this criminal complaint?

'The Court: No, they may not.'

The complaint filed on December 15 and signed by Mr. Kelly described the weapon as a revolver. This description appears in two places in the complaint and the complaint further shows that the word 'revolver' was stricken and the words '.32 caliber automatic pistol' inserted by interlineation in each place. The complaint was filed on December 15 and warrant issued on that date and the .32 caliber automatic pistol was taken from the home of defendant on the 16th of December.

And again in defendant's examination of his wife as his witness the following questions and answers appear in the transcript:

'Q. Did anyone encourage you to have this warrant made out for my arrest (referring to warrant issued on her complaint)? A. Yes.

'Q. Who encouraged you to have this warrant made out for my arrest?

'Mr. Nabours: If your Honor please, I object to this.

'The Court: The objection must be sustained.

'Mr. Aldrich: Q. Did Mr. Kelly encourage you to have the warrant made out?

'Mr. Nabours: Your Honor, I object to----

'The Court: The objection is sustained.

'Mr. Aldrich: Q. Mrs. Aldrich, will you tell me who arranged that you see the district attorney to have the warrant made out?

'Mr. Nabours: If your Honor please, I am going to object to that question also.

'The Court: The objection must be sustained.

'Mr. Aldrich: Q. On the night that officers came to serve this warrant did you or did you not meet them outside of our residence? A. Yes, I did.

'Q. What was the purpose of you meeting them outside the residence when you knew that they probably had a warrant for my arrest?

'Mr. Nabours: I object to the form of the question, your Honor. It is calling for a conclusion of the witness.

'The Court: The objection must be sustained.'

And later on in the examination the following questions were asked:

'Q. Why did you go out there to meet them?

'Mr. Nabours: If your Honor please, I object on the ground that there is no foundation.

'The Court: Objection sustained.

'Q. Why did you not wait for them to come in the house?

'Mr. Nabours: Your Honor, I object to that on the same grounds.

'The Court: The objection is sustained.'

And later:

'Q. What was the first thing that you told Officer Kelly and Officer Meador upon meeting them? A. When I first went out I told Mr. Kelly, 'I am going to drop the charge, the ones I have made against Harold. He is here tonight and we are trying to get things straightened out and I am going down and drop the charge.'

'Q. What did Mr. Kelly say in reply? A. He said 'That is fine, Mrs. Aldrich. We still want to see your husband. Is he in the house?' and I said 'Yes'.'

Later, during the examination, this question was asked:

'Q. After putting the defendant in jail, at any time did Mr. Kelly attempt to contact you?

'Mr. Nabours: If your Honor please, I object to that.

'The Court: Objection sustained.'

It appears from the above-quoted portions of the transcript of evidence that appellant was not permitted to show either on direct and cross-examination of the witness Kelly or on direct examination of defendant's wife,...