State v. Johnson

• Decision Date: 13 January 1972
• Docket Number: No. 2110,2110
• Citation: 492 P.2d 703,108 Ariz. 42
• Parties: STATE of Arizona, Appellee, v. Julius JOHNSON, Appellant.
• Court: Arizona Supreme Court

Page 703

492 P.2d 703

108 Ariz. 42

STATE of Arizona, Appellee, v. Julius JOHNSON, Appellant.

No. 2110.

Supreme Court of Arizona, In Division.

Jan. 13, 1972.

Gary K. Nelson, Atty. Gen., Phoenix, by Carl Waag and Paul J. Prato, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, Phoenix, by James H. Kemper and Anne Kappes Deputy Public Defenders, Phoenix, for appellant.

STRUCKMEYER, Justice.

Defendant, Julius Johnson, was tried and convicted on the charge of assault with intent to commit murder on Loreace Woods, in violation of A.R.S. § 13--248, and has appealed. Johnson complains that the trial court erred in refusing to instruct the jury on the question of self-defense.

Where there is the slightest evidence of self-defense and, hence, justification for an assault, the issue must be submitted to the jury, Everett v. State, 88 Ariz. 293, 356 P.2d 394. In Everett, as here, the defendant's testimony was the sole evidence submitted in his defense, and the defendant's testimony conflicted with the testimony presented by the State's witnesses. This Court concluded the testimony presented by the defendant was material, requiring that the plea of self-defense be submitted to the jury. We have also said the determination of indicate that violence was done in self-fense, a fact question for the jury. State v. Foggy, 101 Ariz. 459, 420 P.2d 934; State v. Fields, 92 Ariz. 53, 373 P.2d 363, and that if the evidence in the slightest degree tends to indicate that violence was done in selffense, the jury must be instructed thereon, Judd v. State, 41 Ariz. 176, 16 P.2d 720.

The defendant testified that he was living at a place called Esau's Camp in Chandler, Arizona; that he and others, including Loreace Woods, were shooting dice on Sunday, August 3, 1969 at Woods' 'place.' The defendant found that his money was gone and saw Woods with his pocketbook. At that time the defendant did not say 'too much about it because a crowd was there, they were all kinfolks there.' When the crap game broke up, the defendant went to Woods' house where he found his billfold empty in the back yard. He then talked to Woods and Woods told him that he did not have defendant's money, but 'I'll see can I get it.' After defendant left the Woods house and was on his way home, he met two men who told him that 'He (Woods) will kill you. He keeps a gun all the time. * * * (H)e keeps a gun in his truck all the time.'

Defendant further testified that he then armed himself with a shotgun and went to a barbecue stand, and that shortly thereafter Woods drove up in his truck. Defendant then asked Woods if he had his money and Woods said 'no,' and then Woods cussed him. Woods was inside his truck and 'he kind of leaned to one side, I don't know if he was trying to get a gun or if he was thinking I was going to shoot or what, but that is when I pulled the gun up like that (indicating), and it just went off.' Later he testified on cross-examination in response to the question, 'You say you accidentally shot the gun?', 'Well, I picked the gun up and it shot before I even know it was going to shoot.'

We think that the foregoing testimony lends itself to an inference that defendant, when he saw Woods lean over in his truck, raised his gun in self-defense. Violence used to the person does not amount to...