State v. Thomas

• Decision Date: 20 July 1959
• Docket Number: No. 1112,1112
• Parties: STATE of Arizona, Appellee, v. Albert D. THOMAS, Appellant.
• Court: Arizona Supreme Court

Page 197

342 P.2d 197

86 Ariz. 161

STATE of Arizona, Appellee, v. Albert D. THOMAS, Appellant.

No. 1112.

Supreme Court of Arizona.

July 20, 1959.

Flynn & Allen, Phoenix, for appellant.

Robert Morrison, Atty. Gen., James H. Green, Jr., Chief Asst. Atty. Gen., Lloyd C. Helm, County Atty., John G. Pidgeon, Deputy County Atty., Bisbee, for appellee.

J. SMITH GIBBONS, Superior Court Judge.

Albert D. Thomas, appellant, and his wife, Ellora Thomas, were jointly charged with murder in the first degree of one Frank Crane. The wife was acquitted and appellant, hereinafter called defendant, was convicted of manslaughter and sentence imposed. We consider that the only serious question to be determined is whether or not the learned trial court erred in giving what is herein called the Voeckell instruction, under the facts and circumstances shown by the record in this case.

It is undisputed that Frank Crane was shot and killed in a gun battle between decedent and his son, John Crane, on the one hand, and the defendant and his wife on the other, during which many shots were fired by both sides. There is a direct conflict on virtually every material fact in issue. The state asserts the first shots came from the Thomas truck and the defendant insists the Cranes started the shooting and he killed Frank Crane in self-defense. There is evidence supporting each of these claims from which reasonable persons might honestly disagree as to who was the aggressor.

After six days of trial the case was submitted to the jury at 3:20 p. m. on May 22, 1956. At 12:00 o'clock midnight the judge called the jury into open court and the following proceedings were had:

'The Court: Let the record show the presence of the defendants and the attorneys and the jury, of course. Members of the jury, I asked the bailiff to bring you down. Who is the foreman, incidentally?

'The Foreman: I am, your honor.

'The Court: 'Do you think you are going to be able to arrive at a verdict in this matter? A. We were wondering if we could--it was permissible for the jury and you to meet.

'Q. No. A. Well, we didn't know. We were doubtful.

'Q. No. That would be very improper to do that. A. And if not, speaking for the jury, we feel that there is not enough evidence----

'Q. I don't want you to tell me. What I want to know is whether you think it is possible to arrive at a verdict. A. I don't.

'Q. Let me ask the rest of the jurors, is it the opinion of all of you that you cannot arrive at a verdict? (Several Jurors) A. Yes.

'Q. That seems to be the general concensus of opinion? Do you believe if I sent you back for further deliberation that you might possibly arrive at a verdict? A. Providing we had one law of the court read to us again.

'Q. Well, do you think it would help if the instructions were re-read to you? A. I do.

'Q. Do the rest of the jurors think it would help? (A Juror) A. No sir.

'Q. You don't think it would make any difference? A. No sir.

'Q. When I gave my instructions you probably noticed I had the court reporter record them on the machine, and it wouldn't be too much difficulty to have them played back to you. If you think it would be of some assistance I would be glad to do that. A. We could try it.

'(Foreman) I think it would be worth a trial.'

'(Court) All right, Mr. Neff, can you set up your machine and do that.'

'(The court's instructions were played back.)

'(Court) All right, members of the jury, I am going to give you further instructions in this case. You are further instructed, members of the jury, that although the verdict to which each juror agrees must, of course, be his own verdict and the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result you must examine the question submitted to you with candor and with proper regard and deference to the opinions of each other.

'There is no reason to suppose that this case will ever be submitted to twelve more intelligent, more impartial or more competent jurors to decide it, or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide this case if you can without yielding your conscientious convictions. In conferring together you ought to pay proper attention to each other's opinion and listen with a disposition to be convinced by other's arguments, and on the other hand if a larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind in a reasonable one which makes no impression on the minds of so many jurors equally honest, equally intelligent with himself who have heard the same evidence, with the same oath; and if on the other hand the majority are for the defendant, the minority should ask themselves whether they may not and ought to reasonably doubt seriously the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors.'

At 12:55 a. m. the jury retired for further deliberations; at 2:30 a. m. the jurors requested information regarding the verdicts submitted, and were informed by the court that they should separately decide the guilt or innocence of each defendant.

It is reasonable to assume from this record that at least a part of the time between 12:55 a. m. when deliberations were resumed upon giving the Voeckell instruction, and 2:30 a. m., when they requested and received information as to the permissible forms of verdicts, was consumed in a discussion of this particular problem. The anounced inability to arrive at a verdict was thereupon resolved and agreement reached in a comparatively short time after such instruction was given.

The defendant assigns as error the giving of this instruction at the time and under the circumstances of the case, considering the gravity of the charge, the nature of the defense, the...