Steffani v. State

• Decision Date: 18 March 1935
• Docket Number: Criminal 811
• Citation: 42 P.2d 615,45 Ariz. 210
• Parties: JESSE STEFFANI, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

42 P.2d 615

45 Ariz. 210

JESSE STEFFANI, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 811

Supreme Court of Arizona

March 18, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs Dougherty & Dougherty and Mr. Roy L. Herndon, for Appellant.

Mr Arthur T. La Prade, Attorney General, Mr. P. H. Brooks Assistant Attorney General, Mr. John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for the State.

OPINION

ROSS, J.

The defendant Steffani has appealed from a judgment of conviction of manslaughter.

Some time before midnight on May 12, 1933, Harry Manuel and Harry Smith, Indians, were traveling westerly on public highway No. 89 in an old model T Ford truck loaded with wood. They had some tire trouble, and, for the purpose of repairing the tire, parked on the right side of Eighth Street in Tempe, a link in said highway, in front of Dad's Place and opposite the Tempe Teachers' College. The truck was two or three feet inside the highway from the north curb, and faced westerly, or the direction in which they were going. It had dim headlights, but no tail-lights. The Indians parked the truck in front of and just west of Dad's Place in order to have the electric light thereof to work under. This light was turned out at midnight, and thereafter there was no light, except the headlights on the truck. At about 1:30 A.M., on May 13th, the defendant, with one Loera, was proceeding westerly along said highway and street in defendant's model A Ford sedan, defendant driving, and ran into and against the Indians, killing both of them.

On May 16th the county attorney filed an information against defendant charging him with wilfully, recklessly, unlawfully and feloniously, and while under the influence of intoxicating liquor, running into and against the said Harry Manuel and killing him.

The first assignment of error is based upon the ruling of the court allowing the county attorney to cross-examine defendant's witness, E. O'B. Mann, upon matters not brought out in the examination in chief. Mann, who owned and operated Dad's Place, was asked by defendant to locate the Indians' truck with reference to his place, about the lights on the truck and in front of his place, and about the growth of timber in the neighborhood. It was also elicited from him that the light in front of Dad's Place was turned off at midnight. On cross-examination the county attorney asked Mann, speaking of defendant and Loera, "And what was their condition?" This question was objected to on the grounds that it was not competent cross-examination and was multifarious. The objection was sustained on the last ground, whereupon the cross-examination continued as follows:

"Q. What was the condition of this defendant at the time when you saw him? A. His condition?

"Q. Yes, as to sobriety? A. As to sobriety, did I get you to say?

"Q. Yes. A. I wasn't close enough to the man to definitely state a fact as to his sobriety.

"Q. I see. A. I could only judge by appearances, that is all.

"Q. Well, what was his appearance at the time? A. Well, from the appearances I would judge he was badly under the influence of liquor.

"Q. Badly under the influence of liquor? A. Yes."

Thereafter, counsel for defendant, asserting surprise, was permitted by the court to cross-examine Mann as a hostile or adverse witness. It seems that when the form of the question was changed to apply to defendant only, if he did not wish to have the witness state defendant's condition, he should have renewed his objection that it was improper cross-examination. The failure to object to the question, and the failure to ask that the answer be stricken, was tantamount to a waiver by defendant of any error in the cross-examination. The prosecution unquestionably could have called Mann as its witness, and asked the questions now objected to. The questioning of such witness while he was testifying for defendant, the latter being permitted to cross-examine, only disturbed the general rule as to the order in which evidence should be admitted, and such irregularity could hardly be said to be prejudicial.

Dr. R. J. Stroud was the state's witness. He was called to the scene of the accident and saw defendant and Loera there. Later, at about 2 o'clock in the morning, he treated their wounds at his office, and at the time, or immediately thereafter, made a memorandum, which, on cross-examination by the county attorney, under the permission of the court, was read to the jury. The court's ruling permitting the prosecution to cross-examine Dr. Stroud, its own witness, and to read the memorandum to the jury for the purpose of impeaching the witness, is assigned as error. The witness, when questioned as to the condition of defendant as to sobriety, stated in effect that he had no independent recollection except that he was under the impression that the defendant was either drunk or dazed; that he could not be more specific. The county attorney, claiming this statement as to defendant's condition was different from what the witness told him a few days before, was given permission to cross-examine the Iwitness. He then asked the witness if he had made notes and, receiving an affirmative answer, there followed these questions and answers:

"Q. And you told me Doctor, from the notes you could recall what the condition of the defendant was. Is that right? A. I told you I wrote my general impression. I told you just these words, 'I will give you my general impression of the two men, not specific.'

"Q. And at that time you could not recollect what the condition was -- that is, a week or two ago? A. No, I could neither recollect exactly. Neither could I recollect my notes.

"Q. I see. A. I hadn't looked at the notes from the time they were injured until I saw them when you were there.

"Q. These notes are in your own handwriting? A. Yes, sir.

"Q. Written at two o'clock, after the accident? A. After I had dressed the wounds of the two men who were in the car which was presumed to have hit the Indians....

"Q. Do you have a statement in your notes, Doctor, that you found two drunken Mexicans? A. I wrote this: 'Saturday, the 13th of May, 1933, County of Maricopa. Called at one-fifteen a.m. to review an accident; two dead Indians; two drunk Mexicans; Jess Steffani, 26, wound in the left thumb; condition of his mouth, some loose teeth; abrasement of right knee which was dressed --.'"

This witness explained, in answer to questions by defendant's counsel, that one of the men was undoubtedly drunk, and he took it for granted that the two were drunk, and wrote the memorandum the way he did.

As we understand the matter of permitting leading questions in chief to one's own witness is largely discretionary with the trial court, especially so when the answer of the witness has surprised the party calling him. It was under this rule the county attorney was allowed to ask Dr. Stroud leading questions. It does not appear that in giving this permission the court's discretion was abused. 28 R.C.L. 589, §§ 182 and 183.

The rule is that a witness who has no independent recollection of the matters inquired about, but who has kept a written record of it at the time, or near the time, may use such record to refresh his memory. 28 R.C.L. 594, § 185. The converse of this must be true; that if the witness remembers the facts independent of such written record he should not be permitted to use such record, for in that event he would not need to have his memory refreshed. 70 C.J. 582, § 748. Dr. Stroud testified he could not recollect defendant's condition as to sobriety, nor could he recollect his notes thereon. He said he wrote his "general impression." It is evident, we think, the witness had consulted his notes before going on the stand, and that his testimony was a reflection of the memorandum as construed by him. The memorandum should not have been read to the jury by the witness, or at all. It was not itself evidence of the facts, and could not properly be used by the prosecution in corroboration of the witness' testimony. Springer v. Labow, 108 N.J.L. 68, 155 A. 476; 70 C.J. 598, § 770.

However, the witness was not asked what his memorandum was, but whether he kept one, and his answer was not responsive to the question. A motion to strike the answer, under the circumstances, should have been made in order to preserve the right to claim error. Holman v. Edson, 81 Vt. 49, 69 A. 143, 15 Ann. Cas. 1089, and note; 28 R.C.L. 592, § 184.

In harmony with the averments of the information, the court instructed the jury on reckless driving as defined by section 1689 of the Revised Code of 1928, and also as to excessive speed. It is urged by defendant that such instruction was abstract because there was no evidence upon which to base it. No eye-witness testified as to the speed or manner defendant was driving, although at the instant of the crash there were two other automobiles in the neighborhood. Jack Harelson was in one, alone, going east. The other was driven by V. R Cromb, and was going in the same direction defendant was going, and passed defendant a short...