State v. Serna, 987

• Decision Date: 21 November 1949
• Docket Number: 987
• Citation: 211 P.2d 455,69 Ariz. 181
• Parties: STATE v. SERNA
• Court: Arizona Supreme Court

211 P.2d 455

69 Ariz. 181

STATE v. SERNA

No. 987

Supreme Court of Arizona

November 21, 1949

Judgment is affirmed.

L Alton Riggs, of Tempe, attorney for appellant.

Fred O Wilson, Attorney General, Joseph Pyle Ralston, Assistant Attorney General, F. Preston Sult, County Attorney of Pinal County, Florence, Robert Murlless, Deputy County Attorney Pinal County, of Florence, attorneys for appellee.

Stanford, Justice. La Prade, C. J., and Udall, Phelps and De Concini, JJ., concurring.

OPINION

Stanford, Justice.

An information was filed in the Superior Court charging defendant with the crime of the murder of one Catherine Gohn on or about the 29th day of December, 1947. The defendant, a Mexican laborer, worked at the Superstition Service Station several months prior to said date. Said service station is located about one mile in a southeasterly direction from Apache Junction on U. S. Highway Nos. 60-70. On Sundays defendant served as a jockey at the Apache Junction Race Track. On Monday, the 29th day of December, defendant failed to report for work, but stayed at the Apache Junction Cafe during the morning and early part of the afternoon. The evidence shows he drank some beer during that time and attempted to purchase from the bartender, Fred Morrison, a certain race horse. Morrison offered to sell the horse for the sum of $ 400. The evidence further shows that defendant went to see his employer, S. R. Oldham, at the Superstitution Service Station in an attempt to get the money with which to purchase the horse, but failed to procure it. About 3 P.M. on said date defendant appeared at Thompson's Service Station and Cafe, located approximately one half mile west of Apache Junction on the main highway to Phoenix. He purchased a cup of coffee, drinking only a portion of it, then left, returning within a few minutes after another customer, who was in the cafe, had gone, and sat down at his place at the counter. Presently he arose and pulled his gun with his left hand and motioned to the proprietress, Mrs. Fairy Thompson and her two daughters to go into a small room. He then said "This is a stick up", but Mrs. Thompson told him that he was kidding and he said "No, I mean it, put your hands up", which she did. Mrs. Thompson then said that he grinned and pulled the trigger. The bullet from a 38 caliber pistol struck her in the breast and she ran out the back way with her daughters and started in the direction of Apache Junction, but she was picked up by a passing motorist and taken to the Mesa Hospital. Her two daughters continued to Apache Junction and reported the shooting.

At about 4:30 P.M. the same day defendant appeared at King's Ranch, about ten miles east of Apache Junction, and asked Paul Marchand, a cowboy acquaintance, to drive him to Safford, Arizona. Defendant stated to Marchand that he had just shot two women. Marchand testified that because he saw a pistol in defendant's hand, he told him he would take him to Safford. He told defendant to go down the road and drive his car into the bushes and wait there and that he would pick him up as soon as he was through watering some sick horses; that defendant drove away in the car; Marchand finished watering the horses and went to the ranch house and got a rifle and with Mrs. King, his employer, drove to the highway. As they reached a place called Sand Tanks, being east of Apache Junction, they contacted the officers in a police car coming from the direction of Apache Junction. The two cars stopped at the Sand Tanks Station and he advised the officers of defendant's whereabouts. Leaving Mrs. King at Sand Tanks he went with the officers to apprehend defendant. As they approached the place where defendant was instructed to hide they found that he had already been captured by officer Earl Parrish, who was with other officers.

When captured defendant had on his person a wallet containing approximately $ 30, and a camera, both of which belonged to the deceased Catherine Gohn, and a 38 caliber H & R revolver. The officers also determined that the automobile in which he had been riding was the property of Mrs. Gohn. The officers then went to the Gohn home, which was located a few hundred yards to the rear of Thompson's Service Station. There they found evidence of a violent struggle and blood stains throughout the house. On a bed they found the body of Catherine Gohn.

From investigation and an autopsy it was found that deceased had been beaten with a sharp object which could have been the barrel of a revolver, and that she had been shot. A ballistics expert testified that the bullet taken from deceased's body and the bullet embedded in the wood of Thompson's Service Station were in all probability fired from the revolver which defendant had in his possession when apprehended.

The case was tried in Florence, Pinal County, Arizona. A verdict of guilty of the crime of murder of the first degree and fixing the penalty at death was rendered, and the judgment and sentence of the court was that the defendant was adjudged guilty of the crime of murder of the first degree and that he be punished by infliction of the death penalty.

Notice of appeal to this court was given from the judgment of conviction and sentence, and from the order denying defendant's motion for new trial.

The defendant has presented six assignments of error of the trial court which he is asking this court to review. Also he has submitted several propositions of law, but a fair review of all of the questions submitted can be determined by the assignments of error, which are as follows:

"1. The Court erred in permitting two witnesses to testify over objection of the defendant, whose names were not endorsed on the original information, but whose names were indorsed on an amended list, which said list, was not served upon the defendant until 9:30 O'clock of the morning of the trial, which was just a few minutes prior to the time that the case was to be heard on its merits.

"2. The Court erred in admitting evidence of another offense than that with which the defendant was charged, particularly the shooting of Mrs. Thompson, over the objections of the defendant, whereby defendant was prejudiced, and thereby deprived of a fair and impartial trial. This is especially true when considered with the instruction given by the Court as to when evidence of other crimes may be admitted, and for what purposes they were to be considered.

"3. The Court erred in not granting the defendant his motion for a new trial, because of the misconduct of the County Attorneys', particularly in the closing arguments wherein each of them commented on the fact that the defendant did not take the stand.

"4. The Court erred in its failure on its own motion to instruct the jury that the fact that the defendant did not take the stand should not and could not be held against him, particularly in view of the statements made by each of the county attorney's in their closing arguments.

"5. The Court erred in its instruction to the jury wherein it attempted to define First Degree Murder.

"6. The Court erred in denying defendants motion for a new trial for the reasons stated in defendants motion for a new trial, on file herein."

The first assignment of error is based upon Section 44-759, Arizona Code Annotated 1939, which reads:

"When an indictment or information is filed, the names of all the witnesses or deponents on whose evidence the indictment or information was based shall be indorsed thereon before it is presented, and the county attorney shall indorse on the indictment or information at such time as the court may by rule or otherwise prescribe the names of such other witnesses as he purposes to call. A failure to so indorse the said names shall not affect the validity or sufficiency of the indictment or information, but the court in which the indictment or information was filed shall, upon application of the defendant, direct the names of such witnesses to be indorsed. No continuance shall be allowed because of the failure to indorse any of the said names unless such application was made at the earliest opportunity and then only if a continuance is necessary in the interest of justice."

The assignment of error was that the court erred in permitting two witnesses to testify whose names were not indorsed on the original information. No point is made in this case that the information was founded on the testimony of witnesses who did not testify. The point argued by appellant is that Section 44-759 requires the county attorney to indorse on the indictment or information the witnesses he proposes to call. In this regard we quote from our case of State v. King, 66 Ariz. 42, 182 P.2d 915, 919:

"* * * The purport and intention of these rules is to enable one accused of crime to prepare adequately and advisedly for his defense. They are not meant to provide an avenue of escape. The defendant not having asked for a continuance, it is difficult to discern wherein he was prejudiced by the order of the court permitting the witness to testify." See also State v. Cassady, 67 Ariz. 48, 190 P.2d 501.

There was no request for a continuance of the case by the defendant in...