State v. Postell, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtDONOFRIO
Citation20 Ariz.App. 119,510 P.2d 749
PartiesSTATE of Arizona, Appellee, v. John Edward POSTELL, Appellant. 496.
Decision Date12 June 1973
Docket NumberNo. 1,CA-CR

Page 749

510 P.2d 749
20 Ariz.App. 119
STATE of Arizona, Appellee,
v.
John Edward POSTELL, Appellant.
No. 1 CA-CR 496.
Court of Appeals of Arizona, Division 1, Department A.
June 12, 1973.

Gary K. Nelson, Atty. Gen., by William J. Schafer, III, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, by Ruby Gerber, Sp. Deputy Public Defender, Phoenix, for appellant.

DONOFRIO, Presiding Judge.

This is an appeal by defendant John Edward Postell from a jury conviction of the crime of assault with a deadly weapon, a felony, and from the judgment and sentence of four to five years imposed thereon.

Defendant was originally charged with the crime of assault with intent to commit murder under A.R.S. § 13--248, as amended 1967. The information alleged that he committed the offense while armed with a gun or deadly weapon. During trial the court instructed the jury on the lesser offense of assault with a deadly weapon. The jury returned a verdict of guilty to said offense. We are asked to pass upon the following questions:

1) Whether it was proper for the trial court to have instructed the jury on the charge of assault with a deadly weapon as being a lesser included offense under the charge of assault with intent to commit murder; and

[20 Ariz.App. 120]

Page 750

2) whether the trial court was required to give an instruction on accidental shooting absent a request by defendant to do so.

The essentially uncontroverted facts, as they relate to this appeal, are as follows. On June 5, 1971, at approximately 2:00 a.m., the defendant shot the victim, George Thomas, in the back while the latter was walking away from Tucker's Place, a rooming house on Main Street in El Mirage, Arizona. The shooting wound was not fatal, and the victim was treated in St. Joseph's Hospital in Phoenix. The incident which provoked the shooting stemmed from defendant's earlier discovery of his 'common-law wife' in bed with the victim.

The major factual issue at trial was whether the shooting was accidental or intentional. Accident or misfortune can, of course, be a bar to criminal conviction. A.R.S. § 13--134, subsec. 3.

Defendant testified in his own behalf that immediately prior to the time the victim was shot, he discovered his 'commonlaw wife' and the victim in the compromising situation, had become annoyed, and raised a borrowed pistol with which he claimed he was unfamiliar, waving it in the air merely to warn the victim. Defendant claimed that the gun accidentally discharged, thus injuring the victim. This was essentially the only evidence offered by defendant as to his theory concerning the shooting incident.

Contrary testimony was presented, however, to the effect that immediately prior to the actual shooting defendant pointed the gun at the victim and the victim's eyewitness companion, stating to the victim, 'I am going to kill you', and stating to the companion, 'You stay back unless you want some too.' Immediately after the shooting, to which the companion testified that he saw the blaze from the gun in defendant's hand, defendant allegedly approached the victim, again pointed the gun at the victim, and said, 'I guess that will teach you a lesson', and later went on to say, 'I'll shoot you again.'

At the conclusion of trial the court instructed the jury regarding the lesser offense of assault with a deadly weapon under A.R.S. § 13--249, but did not give an instruction regarding accidental shooting. The defendant did not specifically request an instruction on accidental shooting. No objections were made to the instructions given by the trial court.

WAS IT PROPER FOR THE TRIAL COURT TO HAVE INSTRUCTED THE JURY ON THE CHARGE OF ASSAULT WITH A DEADLY WEAPON AS BEING A LESSER INCLUDED OFFENSE UNDER THE CHARGE OF ASSAULT WITH INTENT TO COMMIT MURDER?

A verdict may be rendered for an offense different from the offense charged only if it is included in the offense charged. State v. Sutton, 104 Ariz. 317, 452 P.2d 110 (1969); State v. Parsons, 70 Ariz. 399, 222 P.2d 637 (1950).

Defendant argues that the court erred in charging the jury that they could find the defendant guilty of assault with a deadly weapon because it is not a lesser included offense. He reasons that because there are means with which to...

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4 practice notes
  • State v. Cameron, No. 2 CA-CR 2013-0265
    • United States
    • Court of Appeals of Arizona
    • June 17, 2014
    ...and, further, that self-defense remains justified as long as "the apparent danger continues." Cf. State v. Postell, 20 Ariz. App. 119, 122, 510 P.2d 749, 752 (1973) (finding no error when court could have "expanded on its instructions" but, "as a whole[, they] fairl......
  • State v. Roberts, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 20, 1976
    ...at the end of the trial to charge a different crime or instructed on a crime which was not a lesser included offense. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). Such actions may very well violate a defendant's fundamen......
  • State v. Evans, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 17, 1980
    ...beyond a reasonable doubt is only required when requested or if the general principles are not otherwise covered. Cf. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973) (defense of accidental shooting). To hold otherwise would defeat the purpose of rule 21.3(c) which was designed to pr......
  • State v. Peterson, No. 54028
    • United States
    • Supreme Court of Louisiana
    • February 18, 1974
    ...the first degree and need not be proved in any prosecution initiated under this subsection. * * *' 2 See, for example, State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (N.M.App.1973); People v. Peery, 11 Ill.App.3d 730, 297 N.E.2d 643 (1......
4 cases
  • State v. Cameron, No. 2 CA-CR 2013-0265
    • United States
    • Court of Appeals of Arizona
    • June 17, 2014
    ...necessary" and, further, that self-defense remains justified as long as "the apparent danger continues." Cf. State v. Postell, 20 Ariz. App. 119, 122, 510 P.2d 749, 752 (1973) (finding no error when court could have "expanded on its instructions" but, "as a whole[, they] fairly covered the ......
  • State v. Roberts, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 20, 1976
    ...at the end of the trial to charge a different crime or instructed on a crime which was not a lesser included offense. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). Such actions may very well violate a defendant's fundamen......
  • State v. Evans, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 17, 1980
    ...beyond a reasonable doubt is only required when requested or if the general principles are not otherwise covered. Cf. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973) (defense of accidental shooting). To hold otherwise would defeat the purpose of rule 21.3(c) which was designed to pr......
  • State v. Peterson, No. 54028
    • United States
    • Supreme Court of Louisiana
    • February 18, 1974
    ...the first degree and need not be proved in any prosecution initiated under this subsection. * * *' 2 See, for example, State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (N.M.App.1973); People v. Peery, 11 Ill.App.3d 730, 297 N.E.2d 643 (1......

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