State v. Kabinto

Decision Date27 January 1971
Docket NumberNo. 1925,1925
Citation106 Ariz. 575,480 P.2d 1
PartiesSTATE of Arizona, Appellee, v. Albert Joe KABINTO, a Navajo Indian, Appellant.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Michael J. Bush, Phoenix, for appellant.

LOCKWOOD, Justice:

Appellant was convicted below of second degree murder and sentenced to a term of imprisonment of not less than fifteen nor more than eighteen years. He appeals from that conviction.

On September 9, 1967, one James Silversmith, a Navajo Indian, was severely beaten. He subsequently died. Eyewitnesses identified the appellant as one of those who was involved in the beating, which took place on a street in Winslow, Arizona, at about noon.

Appellant took the stand in his own defense. He admitted that he did hit someone, but claimed it was not the victim. He also denied kicking the victim. He bases his defense primarily on the assertion that he was too drunk to form a malicious intent. He introduced evidence, uncontroverted, that he had been on a three-day drinking binge. In addition, the prosecution's evidence showed that the appellant had been drinking. The appellant also testified that one Alex Grayhair told him that the victim stole his horses. However, Alex Grayhair denied that he said any such thing.

On this appeal, appellant was represented by court-appointed counsel, who filed what is termed an 'Anders brief.' 1 See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Appellant raises three questions:

'1. Is a defendant who is a Navajo Indian denied equal protection of the laws if tried by a jury selected from a panel on which no Navajo Indians served?

'2. Does a report of stolen chattel constitute sufficient provocation to negative the malice required for a conviction of second degree murder?

'3. Is a defendant who is a Navajo Indian denied due process by the trial court's refusal to permit him an interpreter?

Appellant's first contention is without merit. There was no evidence to show that Navajos are systematically excluded from jury panels. There was a Hopi Indian on the jury panel, although he was not selected as a juror. There was no evidence to show that Navajo Indians should, for equal protection purposes, be considered in a separate class from Hopi Indians. We note that the record shows that the jurors were specifically asked if they had any prejudice against (or for) Navajos. The record shows that the court and both attorneys were very careful to ascertain that the jurors would be fair and not consider the race of the defendant to be a factor in determining guilt or innocence. There is nothing in the record to support appellant's contention. Neither has he made a showing that to make an objection to the jury selection would have further inflamed the jury. See Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964).

Appellant next urges that he should have been granted an instruction on manslaughter. We agree. A.R.S. § 13--455 defines manslaughter as 'the unlawful killing of a human being without malice.'

The evidence introduced by appellant tends to show that he was extremely intoxicated. He had been on a drinking binge for three days. The prosecution evidence supports at least some evidence of drunknness. Since credibility of the witnesses is a factor for consideration by the jury, the jury had a right to consider the defendant's story. By denying the defendant the instruction on manslaughter, the jury was deprived of the opportunity to determine whether he was too drunk to have the necessary intent of malice, a necessary element of murder in the second degree. The trial court did properly instruct on drunkenness, but left only the alternatives of guilt or innocence.

In State v. Saunders, 102 Ariz. 565, 435 P.2d 39 (1967), we held it was error not to instruct on manslaughter, where the defendant's evidence was that he was in such a state of intoxication that he could not form an intent or was incapable of harboring malice aforethought. Saunders quotes with approval from State v. Hudson, 85 Ariz. 77, 331 P.2d 1092 (1958) in which this Court stated:

'It is a well-settled general rule that voluntary drunkenness at the time a crime is committed is no defense, (citation) and while mere drunkeness does not excuse an offense it may produce a state of mind in the accused which incapacitates him from forming or entertaining a malicious intent or that 'malice aforethought' which is an...

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7 cases
  • State v. Taylor
    • United States
    • Arizona Supreme Court
    • April 2, 1973
    ...members of the defendant's race in the selection of the jury. See State v. Padilla, 107 Ariz. 134, 483 P.2d 549 (1971); State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971). 3. JURY DETERMINATION OF BOTH GUILT AND Next the defendant contends that the submission to the jury of both the questio......
  • State v. Money, 2268
    • United States
    • Arizona Supreme Court
    • October 5, 1973
    ...U.S. 917, 91 S.Ct. 898, 27 L.Ed.2d 818 (1971). See also State v. Mojarro Padilla, 107 Ariz. 134, 483 P.2d 549 (1971); State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971). DID THE COURT COMMIT REVVERSIBLE ERROR WHEN IT ALLOWED THE JURY TO SEPARATE AFTER CLOSING ARGUMENTS BUT ERFORE Defendant'......
  • State v. Morales
    • United States
    • Arizona Supreme Court
    • October 30, 1978
    ...113 Ariz. at 353, 554 P.2d at 1280. See also State v. Saunders, 102 Ariz. 565, 435 P.2d 39 (1967); A.R.S. § 13-132; State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971); State v. Duke, 110 Ariz. 320, 518 P.2d 570 (1974); State v. Drury, 110 Ariz. 447, 520 P.2d 495 (1974); State v. Ramirez, 11......
  • State v. Faafiti, 5365
    • United States
    • Hawaii Supreme Court
    • August 29, 1973
    ...or not to appoint an interpreter. Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722. (1907); State v. Kabinto, 106 Ariz. 575, 480 P.2d 1 (1971); Suarez v. United States, 309 F.2d 709 (5th cir. Although the defendant did not speak grammatically correct English, upon revi......
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