State v. Hitchcock
Decision Date | 23 March 1960 |
Docket Number | No. 1126,1126 |
Parties | STATE of Arizona, Appellee, v. Benjamin HITCHCOCK, Appellant. |
Court | Arizona Supreme Court |
Patrick W. O'Reilly, Phoenix, for appellant.
Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Franklin K. Gibson, Asst. Atty. Gen., for appellee.
The appellant, Benjamin Hitchcock, hereinafter referred to as defendant was convicted in the Superior Court of Maricopa County of murder in the first degree and sentenced to life imprisonment. The first count of the information charged him with having killed one Ernest A. DiVito while in the commission of a robbery; the second and third counts charged him with kidnaping. The defendant was acquitted of the kidnaping charges but was found guilty of murder in the first degree. The applicable statutes upon which the murder court of the information was based are as follows:
From that verdict and judgment and from the court's order denying defendant's motion for a new trial, the defendant brings this appeal.
The facts are that the defendant appeared at the office of Ernest DiVito on the morning of the 16th of October and asked the secretary, Miss Audrey Wedlock, if they had received final payment on a contract which they had recently completed, claiming that deceased owed him money which he had promised to pay when final payment was made on said contract. She replied that it had not been paid. As Ernest DeVito emerged from a rear office defendant pulled a gun. He removed two checkbooks from the secretary's desk and after examining the balance shown in one, put them into his pocket. He then took a check protector in his right arm and at gun point ordered Ernest DiVito and the secretary, Miss Wedlock, to go with him.
As defendant was backing Ernest DiVito's car out of the driveway, his brother, Anthony DiVito, arrived. A struggle for possession of the gun resulted in its being thrown into the street. But before defendant was completely subdued, he produced a second gun which he discharged two times. One of the projectals struck Ernest DiVito, passing through his arm and chest and lodging in his third dorsal vertebrae, resulting in his death.
Defendant makes three assignments of error, the first of which is stated as follows 'The verdict rendered is not supported by the evidence and is contrary to law in that there was insufficient evidence to support a conviction of the crime of homicide in the perpetration or attempt to perpetrate a robbery for the reasons that:
The first part of this assignment of error charges that the evidence discloses that the robbery was at an end when the killing occurred and implies that therefore the felony-murder rule should not have been applied. The basis of defendant's argument in connection with this contention is found in Anthony DiVito's testimony on cross-examination. After this witness had testified that he had apparently disarmed the defendant by throwing the first gun into the street, counsel for defendant skill-fully gained an affirmative answer to the following question:
'So, you pulled him out in order to beat him up, to have a legal fight with him?'
It is defendant's contention that at this point in time he had been subdued and that the robbery or attempted robbery was at an end. Contrariwise, an examination of the transcript in this case totaling over 750 pages and bound in three volumes does not sustain the defendant's position. There was no appreciable span of time nor appreciable change in the respective position of the parties between the disarming of defendant and the shooting; nor any overt act on the part of the defendant which would indicate to those present that he had abandoned the robbery or that it was at an end. The evidence indicates that the events which transpired immediately preceding the shooting occurred in rapid sequence and as a part of the chain of events which defendant's deliberate acts had set in motion. The clear import of the evidence is that defendant had not been subdued or even apparently subdued at that point in time when he had been seemingly disarmed. And the remainder of Anthony DiVito's testimony makes it equally clear that his purpose in pulling defendant out of the car in order to 'have a legal fight with him,' was to restrain him until the police arrived.
A well-reasoned opinion cited by the State, Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 599, 12 A.L.R.2d 183, thoroughly discusses this problem. In applying the felony-murder rule the court held the defendant accountable for the death of a policeman attempting to apprehend the defendant although the fatal shot may have been fired mistakenly by another policeman. In so ruling, the court cited numerous criminal and civil cases as well as many of the most noted authorities. The court there said:
' * * *'
In Commonwealth v. Byron, 357 Pa. 181, 53 A.2d 736, 741, the court made a statement which is especially germane to this case:
* * *'
Nothing could be more natural than for one to intervene where a member of his family is being held at gun point as did Anthony DiVito in this case.
The second part of defendant's first assignment of error charges that:
'There was insufficient evidence of the necessary element of a taking of personal property in the possession of another from his person, or immediate presence.'
It is argued that since the jury found defendant not guilty of kidnaping Ernest DiVito and his secretary, that they accompanied defendant of their own free will. It is said to ncessarily follow that the property of which defendant was charged with taking by force or fear was never out of the presence or the possession of the deceased; and consequently, there was no taking as is necessary to constitute the crime of robbery under the statute.
The answer to the last above claim is that the law relating to robbery does not require the property to be taken out of the presence of the person robbed. It is sufficient if the taking is from the person of one who is robbed or in his immediate presence. In either case if the person robbed is killed the killing constitutes murder in the first degree under A.R.S. § 13-452, supra. In instructing the jury on the felony-murder rule as it is applied under our statutes, the court correctly stated:
'Ladies and gentlemen of the jury, you are further instructed that if a human being is killed by another person while such person is engaged in the perpetration of, or an attempt to perpetrate the crime of robbery, such person doing the killing under such circumstances is guilty of murder of the first degree, regardless of whether the killing is intentional or unintentional. * * *' (Emphasis supplied.)
Suffice it to say that the jury in finding defendant guilty was apparently satisfied beyond a reasonable doubt that there was a taking of...
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