Strickland v. State

• Decision Date: 26 December 1930
• Docket Number: Criminal 727
• Citation: 37 Ariz. 368,294 P. 617
• Parties: LOUIS H. STRICKLAND and HAROLD C. UHLER, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

294 P. 617

37 Ariz. 368

LOUIS H. STRICKLAND and HAROLD C. UHLER, Appellants, v. STATE, Respondent

Criminal No. 727

Supreme Court of Arizona

December 26, 1930

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

Mr Robert E. L. Shepherd and Mr. John C. Lee(Mr. H. M Fennemore, of Counsel), for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon Assistant Attorney General, and Mr. George T. Wilson, County Attorney, for the State.

OPINION

LOCKWOOD, C. J.

Louis H. Strickland and Harold C. Uhler were jointly informed against by the county attorney of Maricopa county for the crime of murder.They were tried jointly, and both found guilty of manslaughter, and from the verdict and the judgment entered thereon they have brought this appeal.

There is considerable conflict in the evidence, but the jury has resolved all such conflict against defendants, so far as it is necessary to sustain the verdict, and our statement of the facts is based upon the state's theory of the case, to the extent it is justified by the evidence.

Dr. M. Blasse at one time built and owned a tuberculosis sanitarium on the Black Canyon road in Maricopa county.At the time of the occurrences out of which this case arises she was dead and her estate was in the course of probate, Mr. John C. Lee being the executor, Mrs. Flora Weaver being in possession of the sanitarium property under a lease.There were several houses on the premises, and on the 9th of November, she, her son Harold McKenzie, and Harry Cornell, the deceased, were occupying one of the houses.A tubercular patient, Fred Wallis, was living in another cottage located near what was called, during the trial, "the big house."

The sanitarium property was heavily mortgaged, and at some time before November 9th the mortgagee had started foreclosure proceedings.Shortly after they were begun Lee, as executor, made arrangements for the sale of the premises to defendant Uhler, receiving $200 on the purchase price, the balance to be paid at the rate of $165 per month for a year, and at the end of the year the entire sum still due to be taken up.

On the night of the 8th of November Uhler attempted to move into one of the houses on the premises, and was only prevented from doing so by Mrs. Weaver's insistent objections thereto.In fact, the bitterness between her and Uhler was so great that a deputy sheriff who was present during the conversation told Uhler that unless he proceeded to get possession legally there might be a killing over the matter, and that he had better stay away.Notwithstanding that advice, on the evening of the fatal encounter defendants armed themselves with revolvers, Uhler carrying his in a holster under his left arm, and Strickland carrying his in his pocket.They also took with them two rifles and a number of cartridges, and, together with Uhler's wife and two small children and a Mrs. Fisher, went to the sanitarium premises and proceeded to move certain of Uhler's household goods which they had brought with them into the big house.Wallis was sleeping when they arrived, but the noise made by them awakened him, and he inquired who they were and what they were doing.No direct answer was made, but he heard someone say, "He don't amount to anything; have you got your gun?"He immediately went to the house occupied by Mrs. Weaver, McKenzie and Cornell, and told them that someone was moving into the big house.They all went to that house, and Uhler and Strickland were requested to leave.They refused to do so; one word led on to another until a general fight resulted, in the course of which Cornell received a gunshot wound from a revolver in the hands of Strickland, from which wound he subsequently died.

These facts are not seriously disputed by any of the testimony.We shall consider later any other portions of the evidence that may be necessary in order to pass on the various assignments of error.

It is the theory of the state that defendant Uhler became determined to take possession of the premises at all hazards, and that Strickland agreed to aid him, and that in pursuance of such determination they armed themselves and went there with the intention of resorting to such force as might be necessary to establish such possession, and that in the fight which arose from the attempt of Mrs. Weaver and her friends to eject them Strickland intentionally shot Cornell.Defendants, on the other hand, insist that they had been informed by Lee on the afternoon of the 9th that Mrs. Weaver was willing they should move into the big house immediately if they would give her a reasonable time to remove from the balance of the premises; that, relying on this statement of Lee, they did so move in, and that, when Mrs. Weaver attempted to eject them from the premises of which they had taken lawful possession under her permission, a mutual combat arose in the course of which a pistol was accidentally discharged, which killed Cornell.

There are some fifteen assignments of error which we shall consider as seems advisable.The first three assignments refer to certain statements made by the county attorney in regard to two rifles which were found at the house where the affray occurred, and certain cartridges found in the possession of defendants, and the introduction of the rifles in evidence, and it is urged that, since these rifles admittedly were not used at all in the affray, they should not have been admitted in evidence; that any reference to them or to the cartridges was improper and could only have the effect of prejudicing the jury against the accused.We are of the opinion these assignments are not well founded.It was the theory of the state, which was supported by much evidence, that defendants went armed to the sanitarium with the intention of taking possession by force at all hazards.One of the rifles belonged to Uhler and the other to Strickland.We think they were clearly admissible as showing the intention and purpose of the defendants in going on the premises.

So far as the remarks of the county attorney are concerned, no objection was made thereto, and no question in regard to them is therefore reserved for review in this court.Britt v. State,25 Ariz. 419, 218 P. 981.

The next group of assignments covers various instructions of the court.In order to consider them properly, it is necessary that we first determine the law governing the right of trespassers, who in good faith believe themselves entitled to the possession of a dwelling-house, to forcibly resist ejection by the rightful possessor, and their criminal responsibility for a homicide resulting from such resistance.

We have been unable to find any decisions precisely in point, so we must reason by analogy.It is a truism that, no matter how honest, no belief as to the right of possession can confer an actual property right.In a civil suit for damages the trespasser would not even be allowed to show such belief except in mitigation of damages, 38 Cyc. 1114.No good faith can make a possession which is actually unlawful a lawful one.And it therefore must follow that any effort on the part of the actual, though bona fide, intruder to eject the true owner, or to resist ejectment himself by force, is unlawful.Whether, in addition to being unlawful, the attempted ejection or resistance or their results constitute a specific crime depends upon the essential ingredients of the crime charged.

An unlawful homicide, under our statute, may be either murder or manslaughter.The essential ingredient of murder is malice.Obviously in a homicide under the hypothetical circumstances we are considering, where the slayer is in good faith defending what he believes a lawful possession, and using no more force than is reasonably necessary to protect such possession, malice cannot exist, and the slayer would not be guilty of murder.

In manslaughter, however, no intent to kill or malice is found.It is sufficient that the killing occur in the commission of an unlawful act not amounting to a felony.Section 4586,Rev. Code 1928;29 C.J. 1148.Under our law a forcible detainer of the lands of another is a misdemeanor.Section 4727,Rev. Code 1928.Nor is a criminal intent necessary to constitute the trespass.The only intent required is to do the act itself.State v. Turner,60 Conn. 222, 22 A. 542;Knight v. State,64 Miss. 802, 2 So. 252;Lawson v. State,100 Ala. 7, 14 So. 870;State v. Green,35 S.C. 266, 14 S.E. 619.

We conclude, therefore, that a bona fide belief in the legality of his possession does not justify an intruder in resistance by force of an attempt of the rightful possessor to eject him, and that, if in such resistance he commits a homicide, his good faith is no defense against a charge of manslaughter.This does not, of course, affect his right to claim self-defense.Even a rightful possessor may not arbitrarily slay a mere trespasser, or deny the latter a reasonable right to self-defense, and the usual rules applicable to such a defense may be invoked by the slayer.With these principles before us, we consider the instructions complained of.

The fourth assignment of error is that the court erred in giving the following instruction: "There is one thing I have overlooked, and that is this, that as a matter of law if Mrs Weaver was in possession of the premises involved in this controversy under an agreement of lease from month to month or for any other term she had the right, the lawful right, to retain possession of such...