Stokes v. Territory of Arizona
| Decision Date | 09 October 1912 |
| Docket Number | Criminal 304 |
| Citation | 127 P. 742,14 Ariz. 242 |
| Parties | PLENNIE STOKES, Appellant, v. TERRITORY OF ARIZONA, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. E. W. Lewis, Judge. Reversed and remanded.
STATEMENT OF FACTS BY THE COURT.
The appellant was indicted by the grand jury of the county of Gila for the murder of Charles S. Woods, alleged to have been committed on January 9, 1910. He was convicted of murder of the first degree, with the death penalty affixed, and sentenced accordingly. From the judgment of conviction, and from an order overruling his motion for a new trial, he appeals.
On the night of January 9, 1910, the appellant was in the house of Daisy Walker, a house of ill-flame, in the town ofMiami, at the invitation of one Jean Elliott, an inmate of the house in the room occupied by the girl. Some kind of a disturbance took place in the room, but the nature of which the testimony does not disclose. The appellant was under some suspicion that he was connected with this disturbance, and that the girl was in some manner receiving ill-treatment. The testimony tended to show that she "was washing the blood off" when the deceased came to the door, and one other of the girl inmates threatened to call an officer if appellant did not "let the girl alone," and Jean Elliott stated this was said to him because "he was beating me, and she told him to stop." About ten minutes after the girl had been at the room, the deceased came and knocked on the door and demanded to be admitted, for the reason, as he stated, he was an officer, and if the door was not opened he "would kick it in." The door was opened, and the officer stood on the threshold and asked the girl, "What is the matter, Jean?" To which she replied, "Nothing in the wide world," and this was repeated. Appellant was unarmed, sitting in a chair, near the foot of the bed, with his coat off, and a friend, Archie Owen, was in the room. The officer was further informed by Jean Elliott that the boys were doing nothing, and she had previously informed the two girls there was no need of the services of an officer, and she continued to insist that no officer was needed at the room.
When the deceased inquired, "What is the matter?" and had received her answer that there was no trouble, the deceased, who was an officer, said to appellant and Archie Owen, "I'll take both of you fellows." Owen stood up, and he was commanded to sit down, and then deceased said to appellant, "I'll take you," and commanded him to "come on." To this appellant answered, "I don't think you will," and at the same time he sprang at deceased, "grabbed" him, and pushed him back through the door, and when they were both in the hall the girl closed the door.
The appellant had no weapons of any kind, and the officer was armed. There was some testimony tending to show that the officer was attempting to draw his pistol. They scuffled but a moment and fell to the floor, when the officer's pistol dropped on the floor -- whether by his pulling it from the scabbard or otherwise does not appear -- and deceased called to others standing near to "get the gun"; but defendant got the gun, and about that time the officer said "I'll give up," or "I'll quit," or words to that effect. The appellant began to get to his feet when the fatal shot was fired, taking effect to the left side of and about an inch from the nose, passing through the upper jawbone and entering the skull, which caused the death. The face was powder burned. The defendant had the pistol in his hand when it was discharged.
The defendant claimed the discharge was accidental, and the testimony of the witnesses is conflicting on that fact. The testimony is not in harmony as to the position of defendant's body in reference to the deceased when the shot was fired; but one witness testified that the defendant aimed the pistol and fired after defendant was standing on his feet, free from the deceased. The other witnesses testify that the shot was fired as defendant was getting on his feet and after deceased had stated he would quit, and in part were corroborated by appellant. Appellant testified the struggle commenced when the deceased made a motion as if to draw his pistol; and it was to prevent the drawing of the pistol and enforcing the threat to arrest him that he clinched with the officer. The deceased stated to his wife, in answer to her question, "How did it happen?" that defendant "shot me after I gave up."
On the question of calling an officer, the woman in charge of the house states she heard no disturbance in the room, but was requested by one of the girls to call an officer, and one of the other girls did call an officer from a saloon near by. The evidence does not disclose what charge, if any, was made by any person to the officer, other than that a disturbance had been created in the room of Jean Elliott, for the quelling of which an officer had been called. The testimony discloses that at the time of the homicide the deceased was a regular deputy sheriff stationed at Miami, and that appellant knew him, and knew he was such an officer.
The grand and trial juries were drawn and summoned in a manner claimed by appellant as irregular; but the cause was tried upon the plea of not guilty. No challenge was made to the panel of the jury or otherwise.
Messrs Kibbey, Bennett & Bennett, for Appellant.
Mr. G. P. Bullard, Attorney General, for Respondent.
Appellant assigns error upon alleged irregularities in the drawing and impaneling of the grand jury that returned the indictment, and in drawing and impaneling the trial jury. No challenge to either jury appears in the record, but the defendant entered his plea of not guilty, and the trial was had upon the issues thus raised.
The irregularities complained of are not fundamental in their character, and are raised for the first time in this court; therefore the objection comes too late for consideration. Furthermore, this court will presume, under such state of circumstances, that all such irregularities were waived by the defendant when he entered his plea of not guilty. Pen. Code Ariz., 1901, par. 797; Ex parte Wilson, 140 U.S. 575, 35 L.Ed. 513, 11 S.Ct. 870; Montgomery v. State, 3 Kan. 263; Thomas v. Territory, 11 Ariz. 184, 89 P. 591; Hoyt v. Territory, ante, p. 161, 126 P. 267, decided July 11, 1912.
Appellant complains of errors committed upon the trial in the admission of testimony, which we deem unnecessary to consider in a disposition of the case. If error was committed on that trial, we presume it will not occur again on a new trial.
The appellant offered testimony of a prior recent altercation between appellant and deceased, and of threats made by deceased to kill appellant, avowing that such testimony was offered for the purpose of showing who was probably the aggressor in the fatal altercation, and bearing on the mental state of the parties at the time of such altercation. The court rejected the offer until appellant would show more clearly its relation to his defense, stating that if the testimony was offered in support of the plea of self-defense it might be received for that purpose, but if the defense relied upon was that of accidental shooting it would have no relevancy, and would be rejected. Counsel for appellant insists this ruling had the effect of forcing the defendant to an election of defenses, upon which is based the fifth assignment of error.
Under a plea of not guilty, accused, in a criminal case, may give in testimony all matters of fact tending to establish any defense he may have, other than former conviction or acquittal and former jeopardy, which must be specially pleaded. Pen. Code Ariz. 1901, par. 882. He is not limited to consistent pleas under this broad statute. On a retrial of this case, should any evidence be brought out showing that defendant was acting in self-defense, the offer of previous threats by deceased should be allowed.
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