State v. Intogna

• Decision Date: 13 October 1966
• Docket Number: No. 1608,1608
• Citation: 101 Ariz. 275,419 P.2d 59
• Parties: STATE of Arizona, Appellee, v. Barney INTOGNA, Appellant.
• Court: Arizona Supreme Court

Page 59

419 P.2d 59

101 Ariz. 275

STATE of Arizona, Appellee, v. Barney INTOGNA, Appellant.

No. 1608.

Supreme Court of Arizona, In Banc.

Oct. 13, 1966.

Darrell F. Smith, Atty. Gen., William J. Schafer, III, Pima County Atty., William T. Healy, Tucson, for appellee.

William A. Scanland, Joseph D. Howe, Tucson, for appellant.

McFARLAND, Justice:

Barney Intogna, hereinafter referred to as defendant, was charged, tried, and found guilty by a jury of the crime of murder in the second degree, in violation of A.R.S. § 13--451 and § 13--452. He was sentenced to serve a term of not less than ten, nor more than eleven years, in the Arizona State Prison. From the verdict and judgment of conviction, defendant brings this appeal.

On May 30, 1964, defendant was alone in the back yard of his home at 765 West Valencia, Tucson, Arizona. He had just returned from a picnic outing with Vivian Bolen and her children. The deceased, Don Bolen, Vivian Bolen's ex- husband, who had been divorced from her for about a year, drove up and stopped his car on the street outside the yard. A neighbor, Dan Don, testified that he later saw Bolen on the sidewalk next to defendant's yard 'on the verge of stepping off, heading towards his car.' Defendant came toward Bolen and spoke to him. Bolen then turned around and went over to a low fence surrounding the yard where shortly thereafter defendant fired two shots into his body from a semiautomatic pistol. He staggered and fell to the sidewalk, where he died.

Tucson police officer, Keith Wright, heard the shots and went immediately to the scene. Officer Wright administered first aid to the victim, and on being told by a bystander that a man had run into the house, jumped over the fence and went into the house where defendant was found and taken into custody.

At the trial, in support of his plea of self-defense, defendant presented substantial testimony to the effect that Bolen was extraordinarily jealous of defendant's attentions toward his ex-wife and had, on several occasions, threatened to kill him. There was also evidence that Bolen was intoxicated on the evening in question and was known to have a reputation for meanness and belligerence when intoxicated.

Defendant's first contention is that the information was insufficient to charge defendant with first degree murder and to support his being bound over and tried on that charge, in that it lacked an allegation of premeditation. The information charged defendant with having committed the crime of murder, no degree specified. An information which charges murder without specifying the degree is sufficient to charge murder in the first degree. State v. Woolery, 93 Ariz. 76, 378 P.2d 751; State v. Peats, 97 Ariz. 133, 397 P.2d 631; Macias v. State, 39 Ariz. 303, 6 P.2d 423; Rule 142, Rules of Criminal Procedure, 17 A.R.S.; Rule 115, Rules of Criminal Procedure, 17 A.R.S.; A.R.S. § 13--451 and § 13--452.

Defendant's next question goes to the sufficiency of the evidence to support the conviction of second degree murder and instructions on first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. Deliberation and premeditation may be shown from circumstances. State v. Singleton, 66 Ariz. 49, 182 P.2d 920; State v. Izzo, 94 Ariz. 226, 383 P.2d 116. Malice aforethought may be express or implied. A.R.S. § 13--451. It is a question of fact to be determined by the jury. A deadly weapon, a pistol, was used in the killing, and the use of a deadly weapon is sufficient evidence for the jury to find express malice. State v. Izzo, supra; State v. Rivera, 94 Ariz. 45, 381 P.2d 584. Defendant either had a pistol on his person, or secured it on Bolen's arrival. There was sufficient opportunity to premeditate and deliberate. There is evidence that defendant spoke to deceased while deceased was stepping away in the direction of his car whereupon he turned and faced defendant shortly prior to the shooting. Deceased was unarmed and was killed while standing on a public sidewalk outside defendant's fence.

Under this state of facts the court was justified in giving instructions on both first and second degree murder, and submitting this question to the jury. On this ground, the verdict will not be disturbed by this court on appeal. State v. Wallace, 98 Ariz. 243, 403 P.2d 550.

Defendant testified that deceased struck him and that he then began shooting. Were the jury to take this testimony into consideration with the facts above stated, the instructions as to manslaughter and supporting instructions relating to inducement of a quarrel and defendant's right of self-defense after cessation of the real or apparent danger were justified by the evidence. The charge of involuntary manslaughter was based on the theory that the killing occurred while in the commission of an unlawful act, that is, the discharge of a firearm within the limits of any municipality in violation of A.R.S. § 13--917.01. A jury may be instructed on as many theories as are logically deducible from the testimony. State v. Mathis, 92 Ariz. 194, 375 P.2d 388.

In the instant case defendant testified he did not remember aiming the pistol, nor did he remember how far away he was when he shot deceased, but defendant did testify he had the pistol in his hand while talking to him. This evidence justified an instruction on involuntary manslaughter. Harding v. State, 26 Ariz. 334, 225 P. 482. In any event, the giving of this instruction was not prejudicial to defendant since he was convicted of second degree murder. Macias v. State, 36 Ariz. 140, 283 P. 711.

Defendant further cites as error the returning of the verdict of guilty of second degree murder, with the added words 'with clemency'. In Arizona the jury is without statutory authority to consider the sentence or punishment in a verdict of second degree murder. In Krull v. United States, 5 Cir., 240 F.2d 122, the court said:

'* * * If the jury, without statutory authority, makes a recommendation for clemency, it does not invalidate the verdict and may be disregarded by the court in imposing sentence. * * *' 240 F.2d at 133

The trial court did not commit error in rendering judgment on this verdict, as such an unauthorized recommendation may be treated as mere surplusage and of no legal effect. Thlinket Packing Co. v. United States, 9 Cir., 236 F. 109; United States v. Mankowski, E.D.Wis., 179 F.Supp. 667; State v. Green, 220 S.C. 315, 67 S.E.2d 509, Riddle v. State, Okl.Cr., 374 P.2d 634; 17 A.L.R. 1117; 87 A.L.R. 1362; 138 A.L.R. 1230.

Defendant contends the court erred in not permitting a psychiatrist, Dr. Lindsay Beaton, to show by exert testimony that defendant lacked the necessary intent to deliberate or act with malice aforethought. In an offer of proof made outside the jury's presence, Dr. Beaton testified defendant was of a type classified as a passive dependent, and in answer to a hypothetical question, stated that a man of this personality type would have acted from fear in shooting deceased under the circumstances outlined in the question. The hypothetical question generally portrayed the evidence most favorable to defendant's claim of self-defense.

In State v. Schantz, 98 Ariz. 200, 403 P.2d 521, this court reaffirmed its adherence to what is known as the Rule of M'Naghten's Case as the test of criminal insanity and refused to allow a defense based on a mental derangement lesser than, or distinguishable from, the M'Naghten Rule, which Arizona has consistently followed. State v. Preis, 89 Ariz. 336, 362 P.2d 660, cert. denied, 368 U.S. 934, 82 S.Ct. 372, 7 L.Ed.2d 196; State v. Crose, 88 Ariz. 389, 357 P.2d 136; State v. Coey, 82 Ariz. 133, 309 P.2d 260; State v. Macias, 60 Ariz. 93, 131 P.2d 810.

In State v. Schantz, supra, we restated the insanity test, under which expert evidence is admissible, as follows:

'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.' 98 Ariz. at 207, 403 P.2d at 525

This court has consistently held expert testimony which does not meet this test to be inadmissible for other purposes. In State v. Narten, 99 Ariz. 116, 407 P.2d 81, defendant offered psychiatric testimony showing the absence of a specific mental state, though not amounting to legal insanity. This court again voiced its rejection of the defense of 'partial irresponsibility' and found the testimony inadmissible to reduce the degree of the offense charged. In the instant case the court properly refused the admission of the expert testimony in regard to self-defense.

Defendant contends that the court erred in admitting the gun in evidence for two reasons--(1) that it was obtained through an 'illegal search and seizure'--and (2) it was the product of an illegally obtained admission. Under the statutory authorization expressed in A.R.S. § 13--1403, an officer may arrest without a warrant '(w)hen he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it.' A.R.S. § 13--1403(4). To determine the legality of the search and seizure, we will consider the evidence adduced at the trial, as well as the evidence presented upon the motion to suppress. State v. Randall, 94 Ariz. 417, 385 P.2d 709; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

Officer Wright testified he heard the shots and when he arrived, saw the fatally wounded victim on the sidewalk and was told that the assailant was in the house. Defendant testified he opened the door and told Officer Wright 'I am the man you are looking for.' These facts justify an arrest without a warrant under the statute. It is well settled that a search without a warrant is justifiable when it is incident...