State v. Preis
| Decision Date | 14 June 1961 |
| Docket Number | No. 1183,1183 |
| Parties | STATE of Arizona, Appellee, v. David PREIS, Appellant. |
| Court | Arizona Supreme Court |
Lawrence C. Cantor, Phoenix, for appellant.
Wade Church, former Atty. Gen., Robert W. Pickrell, Atty. Gen., Stirley Newell and John A. Murphy, Jr., Asst. Attys. Gen., for appellee.
The defendant, David Preis was informed against and tried for the unlawful killing, on or about September 7, 1959, of one Maxwell J., Ambrose. A jury convicted the defendant of second degree murder. The defendant's motion for a new trial was denied. This appeal followed.
The defendant's wife was friendly with the decedent and accepted his companionship on many occasions. This relationship had come to the attention of the defendant. On the evening of September 7, 1959, the defendant rented a car and drove to the decedent's apartment. Upon arriving at the decedent's apartment around 10:45 p. m., the defendant learned from knocking and inquiring at another apartment that he was not at home. The defendant then seated himself beside the apartment's swimming pool to await the decedent's return. Around 11:10 p. m. the decedent returned home and upon recognizing him, the defendant stopped him near the pool patio and asked the whereabouts of his wife. The decedent refused to answer and instead called the defendant a vile name, turned and hurried towards his apartment. While the decedent was going towards his apartment, the defendant pulled a gun from his pocket and fired five times at the decedent, emptying the gun. Two bullets hit the decedent and three others missed and lodged in the apartment building. Thereupon the defendant ran to his car and returned to the motel where he was lodging, packed his belongings into the rented car and left.
Around 1 a. m. the police apprehended him in Mesa traveling East and booked him at the Mesa police station. The defendant underwent questioning there from about 1:50 a. m. to 2:45 a. m. in the presence of several police officers and a newspaper police reporter. The defendant orally confessed the killing during the questioning period. The record reveals that during the questioning the defendant was not with counsel and that he was not informed that whatever he said could be used against him at the trial.
At the trial, the defendant took the stand in his own behalf and admitted the shooting but asserted the defenses of self-defense and insanity. On appeal the defendant has alleged five assignments of error.
The defendant contends the trial court committed error in admitting into evidence an oral confession of the defendant on the grounds that such confession was not freely and voluntarily made. The trial court followed the rule of procedure for the admissibility of confessions in this jurisdiction as has been set forth in State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 and State v. Hudson, 89 Ariz. 103, 358 P.2d 332. Therein we set forth that when a confession is offered and objected to by the defendant, the state must proceed by laying a prima facie foundation by showing that the confession was freely and voluntarily made. Before the confession is submitted to the jury after the proper foundation has been laid, the defendant, if he desires, must be given the opportunity, in the absence of the jury, to show that such was not freely and voluntarily made. If the trial court concludes thereafter that the confession was freely and voluntarily made or there is a conflict as to whether it was freely and voluntarily made it must admit it into evidence and then submit it to the jury under proper instructions.
The facts and circumstances surrounding the confession complained of in the present action are: The defendant was arrested around 1 a. m. on September 8, 1959, and taken to the Mesa police station. He was there questioned from 1:50 a. m. to about 2:45 a. m., during which time he orally confessed but refused to sign a written confession. The record reveals that a small bottle of capsules or pills had been found in the defendant's car after his arrest and were brought into the interrogation room. One of the officers present asked the defendant if they were dope and looked into the defendant's eyes. The defendant answered that they were pills for his heart condition and that he had taken one at 1 a. m. and felt fine. Though the defendant on appeal alleges that he was denied coffee and a sandwich during this period, the record is void of any request for them by the defendant. We believe that the state in its preliminary proof met the burden to justify the court in ruling that the confession was prima facie voluntary and properly admitted it into evidence.
While it would have been better and the safer course for the officers to have advised the defendant that what he said could be used against him at the trial, it was not necessary in order to render the confession admissible....
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Jackson v. Denno, 62
...hearing or a new trial, failing which Jackson is entitled to his release. Reversed and remanded. APPENDIX A. ARIZONA: State v. Preis, 89 Ariz. 336, 362 P.2d 660, 661-662, cert. denied, 368 U.S. 934, 82 S.Ct. 372, 7 L.Ed.2d 196 (conflicts in the evidence for the jury but 'it must appear to t......
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...'An intentional use of a deadly weapon, however, is enough to infer an intent to cause serious bodily harm to the decedent. State v. Preis, 89 Ariz. 336, 362 P.2d 660. This inference, in addition to the fact that there is nothing in the record to indicate that the defendant shot other than ......
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