State v. Willits

• Decision Date: 11 June 1964
• Docket Number: No. 1343,1343
• Citation: 96 Ariz. 184,393 P.2d 274
• Parties: The STATE of Arizona, Appellee, v. Roy David WILLITS, Appellant,
• Court: Arizona Supreme Court

Page 274

393 P.2d 274

96 Ariz. 184

The STATE of Arizona, Appellee, v. Roy David WILLITS, Appellant,

No. 1343.

Supreme Court of Arizona, In Banc.

June 11, 1964.

Rehearing Denied June 30, 1964.

Robert W. Pickrell, Atty. Gen., Phoenix, and Norman E. Green, Pima County Atty., Tucson, for appellee.

Alfred J. Rogers, Tucson, for appellant.

STRUCKMEYER, Justice.

Defendant was convicted of attempting to explode dynamite in a dwelling house with intent to injure, intimidate or terrify a human being, in violation of A.R.S. § 13-922, and two counts of assault with a deadly weapon in violation of A.R.S. § 13-249. From the final judgment of conviction of violation of A.R.S. § 13-922 and the sentence thereon of ten to twenty-five years in the state penitentiary, he brings this appeal.

The following facts summarize the record. On the evening of December 29, 1962, defendant went to the home of Eddie and Janice Urbano in Tucson. His former wife, Arthelia Willits, and their two children, Kenneth and David, were then living at the Urbano residence. Defendant's purpose, as he testified, was to talk with Arthelia and persuade her to attempt a reconciliation. He also stated that he wanted to see his boys. There had been considerable dispute between Arthelia and defendant on the matter of his right to visit the children. She was award their custody by the terms of the divorce and, apparently, not only refused to recognize his visitation rights, but refused even to discuss the matter with him. In any event on the evening in question, he was determined to see the children and, according to his own testimony, was prepared to take 'desperate' measures.

When he entered the Urbano home, he carried a homemade blasting device consisting of three sticks of dynamite and a battery-powered 'detonating box' or 'detonator.' Inserted in one of the dynamitc sticks was an electrically activated detonating cap which was connected by insulated wires to each of two terminals located on the detonating box. This box was also equipped with two switches and when both switches were in the 'on' position the batteries provided a flow or current through the cap, causing it to explode. The shock of this blast was designed, in turn, to set off the more powerful charge of dynamite.

While he was inside the house, an altercation arose between defendant and Arthelia--he was holding her arm and she commenced struggling to get free. During this scuffle, in the presence of the two Willits children and the Urbano family, the detonating cap exploded. Minor injuries to some of the children and inconsequential damage to certain household furnishings resulted. The dynamite, however, did not explode.

Investigating officers who subsequently examined the scene found that the insulated wires which connected the detonator to the dynamite had been severed by the explosion. The detonator and the lengths of wire still connected to the terminals were salvaged and introduced into evidence at the trial. The package of explosive, with the wires attached thereto, was turned over to military officials at Davis-Monthan Air Force Base and subsequently destroyed.

This latter action gives rise to defendant's single assignment of error that the court improperly refused the following instruction:

'If you find that the plaintiff, the State of Arizona, has destroyed, causd to be destroyed, or allowed to be destroyed any evidence whose contents or quality are in issue, you may infer that the true fact is against their interest.'

It was apparent from the start of the trial that the defenses to the charge were (1) that the dynamite cap was discharged accidentally through static, stray electricity or radio and (2) that the dynamite was in such a condition that it could not be exploded.

The defendant testified that he had experience with dynamite; that he had, some four months before, taken the dynamite and buried it in a box in the desert, standing it upright at a 45 degree angle so that the nitroglycerine would drain out; that he had previously used dynamite which had been kept in storage under those conditions and that it had proven that it would not detonate. He also testified that he did not throw the switches on the detonator and that the discharge was accidental.

An expert witness, Sheldon Banlk, an electrical engineer, testified from an examination of the detonator that it was possible for the wires to short and thus explode the detonating cap. He also testified that if the electric system in the house was ungrounded, a stray field or an electrical discharge or a shock could have taken place or that a car near the house transmitting with an output of 25 watts could ignite the cap. Another expert was called who established that the output of the radio transmitter on the police car parked near the house was 25 watts.

Another, Donald A. Charles, a quarry foreman, experienced in the handling of dynamite, testified that with this type of blasting igniter precautions had to be taken because there were times when the cap would go off without energy from the detonator and could be ignited by radio frequencies, stray current, static and shock; that exposed terminals and wire without insulation are susceptible to static, stray electricity and radio. He further testified from an examination of the detonator that the chance of the electric detonator cap being accidentally ignited was fifty-fifty.

Defendant urges that the dynamite which was destroyed and the wires attached to the dynamite might have aided the defendant in showing that the explosion was accidental. It is thus plain that the defendant's requested instruction as to the inferences which could be drawn by the jury in the light of his evidence was the key to his entire defense.

Accordingly, the appeal here presents two questions--first, did the trial court err by rejecting defendant's requested instruction for the reason that it was comment on the evidence; and second, if the requested instruction in not a comment on the evidence, are there other sufficient reasons why the instruction should not have been given.

Article 6, § 27 of the Constitution of Arizona, as amended 1960, A.R.S., requires that:

'Judge shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.'

The trial judge rejected defendant's requested instruction as a comment on a matter of fact of his own volition, saying:

'Of course, the reason why I'm going to refuse it I think its a comment on the evidence, I think the inference can be argued but we in this state are prohibited from singling out evidence and--I've violated that rule several times because nobody has made any objections to thses instructions that come out of California, but this, to me, is singling out one piece of evidence and saying that this is what you can do, and it allows the Court to much leeway to----'

The evidence concerning the destruction of the dynamite is uncontradicted and comes solely from the lips of one witness. Captain Donald Pierson, an ordnance officer, member of the United States Air Force stationed at Davis-Monthan Air Force Base at Tucson, a witness for the State, who testified he took possession of the dynamite at the request of the Tucson Police Department, that it appeared to be active and he had it destroyed. He also testified:

'Q. * * * Captain, could the dynamite have been saved for the purposes of an analysis?

'A Yes, it could have if--it could have been, yes. * * *'

It is well established that matters of fact conceded at a trial or established by uncontradicted or uncontroverted evidence may be assumed by the court in an instruction without violating the constitutional prohibition. Wolff v. First Nat. Bank of Winslow, 47 Ariz. 97, 53 P.2d 1077; Reid v. Topper, 32 Ariz. 381, 259 P. 397; Porris v. State, 30 Ariz. 442, 247 P. 1101. If the instruction assumed, which we do not think it does, that the dynamite and wires could have been saved, it still would not be a comment on the facts within the constitutional prohibition because it is uncontradicted that they could have been saved.

It is of importance to the settled law of this jurisdiction that the point be clarified. The instruction does not assume a fact. It says 'if you find.' Conditional statements embodied in instructions such as 'if you believe,' 'if you are convinced,' 'if you find' are commonly given and have never to our knowledge been considered as violating the constitutional prohibition.

The Arizona judicial articles were originally taken from the State of Washington. Under an identical constitutional provision in Washington, their supreme court has repeatedly held 'The trial court is not forbidden to make reference to the evidence, but is only forbidden to comment thereon.' State v. Roberts, 144 Wash. 381, 258 P. 32, and citations. The word 'comment' as used in the Constitution has the usual connotation of an expression of opinion. See Webster's, Third New International Dictionary.

While it is not proper for a trial judge to single out a particular facet of the case in his charge to the jury to the exclusion of other matters, still this does not mean that he is forbidden to direct the jurors' attention to all matters properly within the issues for their determination. This Court said in Lacy v. State, 38 Ariz. 60, 64, 65, 297 P. 872:

'Upon that issue the court in the above instructions hypothesized the evidence, both that supporting the defense and denying it, and delcared the law. In other words, the...