Sullivan v. State

• Decision Date: 02 March 1936
• Docket Number: Criminal 826
• Parties: JACK SULLIVAN, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

55 P.2d 312

47 Ariz. 224

JACK SULLIVAN, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 826

Supreme Court of Arizona

March 2, 1936

APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.

Mr. S K. Williams and Mr. John J. McCullough, for Appellant.

Mr John L. Sullivan, Attorney General, Mr. Elmer C. Coker Assistant Attorney General, and Mr. Frank E. Thomas, County Attorney, for Respondent.

OPINION

LOCKWOOD, C.J.

Jack Sullivan, hereinafter called defendant, was informed against by the county attorney of Cochise county for the crime of murder. He was duly tried on such information, and the jury returned a verdict finding him guilty of murder in the first degree, and fixing the penalty at death. From the judgment rendered on the verdict and the order overruling the motion for new trial, this appeal has been taken.

In order that we may pass properly upon the various assignments of error, it is necessary that we first set forth the ultimate facts disclosed by the record, stated as strongly in support of the verdict as the evidence will reasonably justify as, under our oft-repeated rule, we must assume them to exist. About 11 o'clock in the morning of March 13, 1935, a Southern Pacific freight train stopped at Bowie, Arizona. William E. Beckstrom, a United States immigration officer, whose duty it was to inspect freight and passenger trains for aliens, noticed that there were two men on top of one of the freight cars and others coming out of an end door of the car. Seeing that the side door of the car was sealed, he immediately went to the room of John Bradberry and informed him of the situation. Bradberry, who was a duly appointed deputy sheriff of Cochise county and also a special officer for the railroad company, was preparing for a bath, but hurriedly pulled on shoes, trousers and a shirt, and the two officers went down to the railroad tracks. Bradberry wore his deputy's badge on the outside of his shirt, but had no weapon of any nature on his person. When they arrived at the point where the freight car above referred to had stopped, he told the men on top of the car to come down, in firm but courteous language. They did so, and Bradberry then entered the sealed car by the open end door and told the men that were in there to come out. Among them were defendant and one John Vale. As each of the men reached the ground, Beckstrom questioned them as to where they were from, in order to determine whether there were any aliens who were unlawfully in this country. Defendant first informed him that he was from San Francisco, later from Redwood City, California, and finally from Louisiana. Up to this time Bradberry had not spoken to defendant except as he told the men in the car generally to come out. There were some eleven men in and upon the car, and, after they had gotten to the ground, Bradberry, noticing that two of them had grapefruit in their possession which he suspected might have been taken from a car on the train, told them to line up in order that he might search them to see if they had any stolen property in their possession. They did as requested without any objection, and he began searching them and their suitcases, starting at the east end of the line. The third man whom he searched was John Vale. He found a blackjack, or small leather covered and loaded club, in his possession, took it away from him, and tossed it to Beckstrom, who was at that time standing a few feet away on one side. While doing so, he cursed Vale for carrying such a weapon, saying either, "I ought to beat you up for carrying that," or "I ought to hit you over the head," or words to that effect, but made no effort of any nature to strike him. He then turned to search the next man in line. At that moment, defendant, who was at the extreme western end of the line, with some five or six men between him and the one Bradberry was searching, walked up behind the latter with a loaded revolver in his hand, and, pointing it at Bradberry, said, "Stick them up, you son-of-a-bitch." Bradberry immediately turned to face defendant, and, as he did so, threw up his hands and struck at the gun in the latter's hands. At practically the same instant, defendant discharged the gun; the bullet entering Bradberry's abdomen. The latter immediately clutched at his body where the bullet had entered, and, almost at the same time, Vale made an attack on Beckstrom, attempting to take the latter's gun from him; it then being in a holster at his side. Beckstrom pulled out the gun and fired one shot at Vale which struck him in the body. The latter immediately retreated, but defendant then opened fire upon Beckstrom, and they emptied their guns at each other. After this, defendant took flight and disappeared from view in the brush upon the desert. Three days after the shooting Bradberry died as the direct result of the gunshot wound inflicted by defendant. A widespread search was immediately made for the latter, and he was apprehended in Reswood City, California, about two weeks later, and brought back to Cochise county by Sheriff Pruitt of Cochise county and Sheriff Talley of Graham county. While returning, they questioned him in regard to the homicide, and he admitted readily that he was the man who had shot Bradberry, but excused himself by saying that he did not mean to kill him, that he thought, when he told Bradberry to "stick them up," the latter would not hesitate to do so, and that he, defendant, could then get away, and that he did not know whether the gun went off accidentally or whether, in the excitement, he pulled the trigger. He was then questioned as to why he had attempted to resist the search which Bradberry was making, and replied that he was wanted in Colorado as a robber and parole violator, and feared that, if he was found, with a gun upon him, he would be arrested and identified and that he thought he could run a bluff on Bradberry and escape. He also stated that he had committed five robberies since he was released from the Colorado penitentiary, and that the gun in his possession had been taken from a police officer in Kansas in somewhat the same kind of a situation as that existing at Bowie at the time of the killing.

All the evidence was uncontradicted and in perfect harmony, several of the men who were in the line testifying, as well as Beckstrom, the immigration officer, and their stories being substantially in accord. Defendant did not take the stand in his own behalf, and the only evidence which he introduced in no way contradicted that offered by state, but rather confirmed it upon most points. It is seldom that a criminal case comes to our attention in which the witnesses agreed so fully as to the substance of what actually occurred.

We therefore consider the assignments of error in the light of the foregoing facts. They are eleven in number, and we will consider them in their order. The first is that the verdict is contrary to the law and evidence, in that there was no evidence of premeditation, deliberation, or malice aforethought. In most cases of first degree murder, there is no direct evidence of malice or premeditation, as these words refer to the condition of the mind of the killer, and therefore generally can only be inferred by the jury from the facts surrounding the killing. The evidence shows that Sullivan, a paroled convict who knew that he was wanted for parole violation and who, according to his own admissions, had committed at least four or five felonies since his parole, desired to evade identification, and, in an endeavor to escape arrest, stepped up behind Bradberry, holding a gun in his hand, and told him, "Stick them up, you son-of-a-bitch." Bradberry immediately whirled about facing defendant, and the fatal shot was fired while the gun was in defendant's hands. We think that this was ample to justify the jury in drawing the inference that the defendant had determined to evade search or arrest, even at the cost of taking the life of Bradberry, if necessary, and that, when he found the latter resisting his illegal and unprovoked assault, he fired the fatal shot with a deliberate and premeditated intent to kill. It is true he says that he had no such intent, but this was a matter for the jurors to determine from the facts as they appeared in the evidence, and we are satisfied that it was sufficient to warrant the conclusion which their verdict shows they did reach.

The second assignment of error is that the trial court allowed Sheriffs Talley and Pruitt to testify as to certain statements which defendant made while en route to Cochise county from Redwood City, for the reason that these statements tended to prove other crimes which the defendant had committed, and that such evidence seriously prejudiced the defendant before the jury. At the trial of the case, the only objection made to the admission of this testimony was that it was a confession obtained under a promise of leniency. Nothing was said in the objection about its referring to other crimes committed by the defendant. For this reason alone, the assignment is not good, for an objection to the admission of evidence must state the reason for the objection, and, if it is not objectionable on the ground stated, it is not error for the court to admit it even though there might be some other proper reason for its rejection not raised by the objection as made. Acker v. State, 26 Ariz. 372, 226 P. 199; Shepard v. State, 28 Ariz. 391, 237 P. 182. But, even assuming that the objection was sufficient to raise the question of whether the evidence was inadmissible on the ground that it tended to show other offenses, we think that the court did not err in admitting it. The situation, as shown by the...