State v. Brock

• Decision Date: 11 July 1966
• Docket Number: No. 1549,1549
• Citation: 416 P.2d 601,101 Ariz. 168
• Parties: STATE of Arizona, Appellee, v. Calvin BROCK, Appellant.
• Court: Arizona Supreme Court

Page 601

416 P.2d 601

101 Ariz. 168

STATE of Arizona, Appellee, v. Calvin BROCK, Appellant.

No. 1549.

Supreme Court of Arizona, In Banc.

July 11, 1966.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., and Robert K. Corbin, County Atty., for appellee.

Lewis, Roca, Scoville, Beauchamp & Linton, John P. Frank, and Sydney Block, Phoenix, for appellant.

BERNSTEIN, Vice Chief Justice.

Appellant, hereinafter called defendant, appeals from a conviction of first degree murder and sentence if life imprisonment entered by the Superior Court of Maricopa County.

The uncontroverted facts are that defendant and the decedent, a gril less than 20 years of age, had been going together approximately 2 years prior to the homicide in question. During that time, they became intimate and marriage plans were discussed. On the night of January 29, 1964, defendant and decedent left a tavern near Phoenix to find a restaurant, but decided instead to drive into the desert.

A brief period of romance followed, then defendant began questioning decedent about another man with whom defendant suspected decedent was having an affair. She admitted sexual relations with the other man and defendant became enraged. He ripped the rear view mirror from the automobile and smashed a window of the car door with his fist. He then pulled decedent from the car and began to beat her about the face, head and body while continuing to question her about the other man. He stopped to smoke a cigarette and decedent got back into the car. Defendant drove a short distance, again became enraged, stopped, pulled decedent from the car and beat her again during which time she first denied, then again admitted relations with the other man. She escaped twice but defendant dragged her back to the car where he held her against the trunk lid with one hand while he again beat her with the other. He then placed her on the front seat of the car and, while driving back to Phoenix, further injured decedent by stopping suddenly causing her head to strike the dash because 'he was just mad and wanted to hurt her.'

When defendant got to his apartment he administered first aid to the decedent and called an ambulance which arrived with the police. Decedent died on the way to the hospital of a subdural hemorrhage caused by trauma to the head which the state's physician said was consistent with the beating she had received. Approximately five had passed since defendant and decedent left the tavern.

Defendant's statements to the police were the source of information concerning what transpired from the time they left the tavern until the police arrived at defendant's apartment. These statements came into evidence through the testimony of police officers who related what they had been told by defendant prior to and during interrogation but before the officers or defendant knew the girl had died.

Defendant's first assignment of error challenges the trial court's instruction to the jury on murder by torture. The instruction was as follows:

'The Court instructs you that all murder which is perpetrated by means of torture is murder of the first degree and all other kinds of murder are of the second degree. Murder which is perpetrated by torture is declared by the law to be murder of the first degree and if you should find that the defendant committed that crime you will have no choice but to designate the offense as murder of the first degree and Essentially an element of murder by torture is that a person who commits the act causing the death of another human being does so with the intention to cause and does cause such other person to suffer pain and endure suffering from such acts.' (Emphasis added.)

The first sentence of the above instruction was based upon the state's requested instruction No. 4 to which defendant duly objected and about which we will comment later Defendant argues that the evidence did not justify giving a torture instruction, but if it did the particular instruction given failed to state the elements of murder by torture. To determine whether the evidence justified a torture instruction, we must first discuss the elements of murder by torture.

Murder is perpetrated by torture when the assailant intends to cause cruel suffering for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911, cert. den. 346 U.S. 827, 74 S.Ct. 47, 98 L.Ed. 352. There need not be an intent to cause death, but there must be a separate intent to cause extreme pain and suffering for one of the enumerated purposes. People v. Anderson, Cal., 46 Cal.Rptr. 763, 406 P.2d 43; People v. Tubby, 34 Cal.2d 72, 207 P.2d 51; Townsend v. People, 107 Colo. 258, 111 P.2d 236. It is not enough that defendant intended to cause extreme pain and suffering; there must also be evidence that he did so for revenge, extortion, persuasion or some other untoward propensity. Townsend v. People, supra; People v. Heslen, Cal., 163 P.2d 21 modified 27 Cal.2d 520, 165 P.2d 250. Furthermore, the death must have been caused by the torture. State v. Folk, 78 Ariz. 205, 277 P.2d 1016.

The instruction given by the trial court was erroneous having failed to include the elements of murder by torture. The court failed to instruct the jury that it must find defendant intended to cause extreme suffering for the purpose of persuasion or to extort a confession from decedent as the evidence showed, and that death must have resulted from the torture. It is clear that our emphasized portion of the trial court's instruction quoted above was error of such a fundamental nature that it deprived defendant of a fair trial. State v. Johnson, 99 Ariz. 52, 406 P.2d 403.

Defendant's next contention is that the evidence did not justify giving a torture instruction. We think that it did. Defendant admitted that he wanted to hurt decedent. Moreover, the jury could infer from the bruised condition of decedent's body that defendant intended decedent to suffer. People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206 Hence, there was evidence from which the jury could conclude that defendant specifically intended to cause extreme pain and suffering.

There was also evidence in the record relevant to defendant's motive for administering the beating. Defendant told one of the officers that after he stopped his automobile the second time, decedent denied relations with the other man. The officer testified:

'He (defendant) said he then began to hit her in the face and body with his fist to try to get the truth out of her. He said that after hitting her quite a few times she finally did admit that she had sex relations with this man.'

Thus, there was evidence that defendant's motive for beating decedent was to persuade her to tell the truth or to extort a confession from her and from the physician's testimony the jury could have found that death was caused by the beatings she received.

The trial court had a duty to correctly instruct the jury on the elements of murder by torture applicable to the case being tried and its failure to do so, though not requested by the defendant, constitutes reversible error. State v. Howard, 97 Ariz. 339, 400 P.2d 332.

Since this case must be retried, we will comment upon other portions of the instructions given to the jury though not assigned as error by the defendant. The court defined malice as:

'* * * wishing to vex, annoy and injure another person or attempt to do a wrongful act established either by proof or presumption of law.

'Such malice may be expressed or implied. It is expressed when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. It is implied when no considerable provocation appears, when the circumstances attending a killing show an abandoned and malignant heart.'

Defendant objected to the first part of the instruction and to the trial court's 'refusal to give the instruction on the term malice submitted by the defense as meaning the intent to kill a human being without legal justification for (sic) excuse.' Malice means the intent to kill without legal justification. State v. Schantz, 98 Ariz. 200, 403 P.2d 521, cert. den. 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530.

The trial court gave a confusing instruction on insanity which was the defendant's principal defense. In one place, the court stated:

'Insanity, as the phrase is used in these instructions, means such a disease or condition of the mental faculties of a person as to render him incapable of knowing the nature and quality of his act and of distinguishing between right and wrong in his relation to the act with which he is charged.'

This part of the insanity instruction stated the elements conjunctively when it was incumbent upon the court to state the elements of insanity disjunctively. In State v. Schantz, supra, we said:

'In the past, Arizona has uniformly adhered to what is known as the Rule of M'Naghten's Case as the test for criminal insanity.'

'This test of legal insanity has two elements. An accused must have had at the time of the commission of the criminal act:

(1) Such a defect of reason as not to know the nature and quality of the act, Or

(2) If he did know, that he did not know he was doing what was wrong.

'Where insanity is an issue, the burden of the State is to establish beyond a reasonable doubt the converse; that is, that the defendant knew the nature and quality of his act And that he knew that what he was doing was wrong.' (Emphasis in original.) 98 Ariz. at 206--207, 403 P.2d at 525.

We also note that on the retrial the trial court must instruct the jury on first degree murder by means other than torture and second degree murder as well as manslaughter if there is evidence tending to show defendant might be guilty of those offenses. Application of Williams, 85 Ariz. 109, 333 P.2d 280. The instruction on second degree murder must include the element of malice, State...