Talley v. State

• Decision Date: 01 July 1916
• Docket Number: Criminal 363
• Citation: 18 Ariz. 309,159 P. 59
• Parties: ROBERT DAYTON TALLEY, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

159 P. 59

18 Ariz. 309

ROBERT DAYTON TALLEY, Appellant, v. STATE, Respondent

Criminal No. 363

Supreme Court of Arizona

July 1, 1916

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Mr Thomas E. Flannigan, Mr. H. M. Foster and Mr. F. C. Jacobs for Appellant.

Mr. G P. Bullard, Attorney General, and Mr. Leslie C. Hardy Assistant Attorney General, for the State.

OPINION

ROSS, C. J.

The appellant appeals from a sentence of death, having been convicted upon the charge of murdering Jesse G. Danner on the eighteenth day of November, 1913, in Gila county, Arizona. He asks that the judgment be reversed upon numerous grounds. He interposed a challenge to the panel of the trial jury, which was overruled by the court. His reasons for challenging the panel were as follows:

"(1) That the jury has no legal authority to act.

"(2) That said jury was not drawn according to law.

"(3) That there is no law authorizing the drawing of said jury in the manner that such jury is drawn.

"(4) That any verdict rendered by said jury would be null and void."

Paragraph 1018 of the Penal Code of 1913 provides that:

"A challenge to a panel must be in writing, and be taken before a juror is sworn, and must specify, plainly and distinctly, the facts constituting the grounds of challenge."

Paragraph 1017 of the Penal Code of 1913 provides that:

"A challenge to a panel can only be founded on a material departure from the forms prescribed in respect to the drawing and return of the jury, in civil actions, or an intentional omission of the sheriff to summon one or more of the jurors drawn."

If it was intended to make the challenge in this case as indefinite and uncertain as possible, that purpose could not have been more effectively accomplished than by the language used. No "facts constituting the ground of challenge" are set forth. It is not shown that "a material departure from the forms prescribed in respect to the drawing and return of the jury" was had. If the jury "was not drawn according to law," the challenge could and should have shown wherein. The record shows that in obtaining the jury the court followed the provisions of paragraph 3542 of the Civil Code of 1913, by entering an order on its minutes directing the sheriff of the county forthwith to summon fifty good and lawful men of his county to serve as trial jurors; this order being based on the fact that there was no jury in attendance upon the court to try the case.

Paragraph 3542 has been the law of Arizona since 1901, it appearing in the Revised Statutes as paragraph 2807. The challenge failing to set forth any reason why the court was not authorized under said paragraph 3542 to order a special venire, we must presume that the court regularly pursued its authority, and that the facts, justifying the course taken by the court, existed.

A challenge was interposed to Juror Willis Miller upon the ground that he had "served as a juror on the regular list within the previous twelve months in the same court." This challenge is based upon chapter 24, section 2, Session Laws of 1905. At the time of the trial, said section 2 had been amended by the elimination of the ground of exemption or disqualification interposed. See paragraph 3543, Civil Code 1913.

The other errors assigned are directed toward alleged errors committed in the course of the trial, and in order to consider them it will be necessary to look into the evidence. They are that the court erred in admitting evidence over the objections of appellant and in rejecting evidence offered by the appellant; in the giving of instructions and in refusing appellant a new trial upon newly discovered evidence.

The Attorney General has called our attention to the fact that the reporter's transcript of the testimony has not been approved by the judge who tried the case. He insists that under the rule heretofore made by this court in Chavez v. Territory, 14 Ariz. 107, 125 P. 483, Perez v. Territory, 14 Ariz. 163, 125 P. 483, and Shaffer v. Territory, 14 Ariz. 329, 127 P. 746, we are without authority to review the evidence for any purpose. However, we are not disposed to pursue that course in this case. Under strict law we might refuse to examine the evidence and confine our attention to the record for fundamental errors; but, in view of the fact that appellant has received the death sentence, we will treat the evidence as though it were regularly and legally before us. Besides, in the Chavez case this court said: "This being a criminal case where the death penalty was awarded, we have most carefully scrutinized the record as it is presented to us. The indictment is sufficient, and the evidence in the case is ample to support the conviction."

In the Perez case it was said: "We have carefully examined the entire record presented. We think the instructions of the court fairly placed the law of the case before the jury, and we think the substantial evidence supports the verdict."

In all capital cases this court has uniformly examined the evidence, whether approved by the trial judge or not, to see that the accused was protected in his rights and not unlawfully condemned. There has been no suggestion by the Attorney General nor anyone else concerned that the transcript of the evidence on file in this court is not correct, and should it disclose that the appellant was not awarded all of the rights guaranteed to him under the Constitution and the law, in view of the fact that appellant's life is involved, we ought not to hesitate to reverse the case. On the other hand, if his rights were secured to him, the duty is equally obligatory to let the law take its course.

Out of the mass of testimony introduced the salient facts leading to the homicide and descriptive thereof are as follows:

The deceased, Jesse G. Danner, was the stepfather to Ethel Spencer, Ruby Johnson and Pearl Johnson, being the husband of their mother, Lily May Danner. The Danners and the appellant before coming to Arizona had lived at Anthony, New Mexico. While there the appellant paid attention to Ethel Spencer and kept her company for about two years. The deceased disapproved of his visits and companionship with his stepdaughter and requested appellant to cease visiting the Danner home. The Danner family, including Ruby and Pearl Johnson, moved to Miami, Arizona; Ethel Spencer remaining in New Mexico. Appellant also moved to Miami, and at the time of the tragedy was working at one of the mines there.

About September 6, 1913, appellant wrote a letter to Ethel Spencer, in which he advised her, if she could, to take her sisters away from Miami, because the Danners did not care as to the way they carried on; that one of the sisters was working in a shooting-gallery and the other was working in a restaurant; that these places were not places that decent girls should work; that there was a roadhouse between Miami and Globe; and that this roadhouse had been indicted because of letting Pearl and Ruby Johnson stay there all night. On the receipt of this letter, Ethel Spencer wrote to her mother and stepfather of its contents, but did not tell them its author.

On the evening of the 18th of November, 1913, about 8 o'clock, Mr. and Mrs. Danner and the appellant were at the home of Mrs. J. O. Lipps, in Miami. The deceased only remained for a few moments. After he had gone, someone remarked that Ethel Spencer was married. Mrs. Lipps further testified, when these remarks were made, appellant got up and left without saying a word. It could not have been very long thereafter when appellant appeared at the sleeping apartments of Harry Hovey and asked him if he wanted to go downtown. After they got started, Hovey said:

"'Where are you going -- to the dance?' And he said, Yes, I might dance some.' We went in and sat in the dancehall awhile, and finally he said, 'Let's go and get the mail,' and I said, 'All right.'"

While at the dance appellant asked Price Lipps if Mr. and Mrs. Danner came by, and was informed that they did. Reaching the post office, Hovey went in the building for the mail, and appellant remained on the outside at the door. Just at third moment the deceased and Mrs. Danner entered the post office, passing appellant at the door and meeting Hovey as he was going out. Hoveys says he told Talley that there was no mail and suggested that they go, whereupon Talley said, "Let's stick around." As the Danners passed out of the post office, Talley said, using his own language, "Mr. Danner, I would like to speak to you a minute." Danner said, "All right," and walked up to him. "I said, 'Mr. Danner, I understand you suspicion tha I wrote a letter to Ethel about the way you are treating Pearl and Ruby"' and he said, 'Yes.' Then I asked him did he know who wrote the letter for sure, and he said, No,' and then I told him that I wrote it, ad what I wrote was the truth, and he replied, 'You are a damn dirty liar,' and struck me almost at the same time."

Mrs Danner's testimony was practically the same as appellant's as to what was said by appellant and her husband, but she says appellant struck her husband first, knocking him down. A rough-and-tumble fight ensued, with the deceased first underneath, then appellant. In the meantime several people had gathered around, and Mrs. Danner was begging them to separate the combatants. While the deceased had appellant down and was severely punishing him, the bystanders pulled them apart, and in doing so they both raised to their feet. It was then that appellant drew a gun. The deceased said to him, "Put up that gun and fight like a man," at the same time grabbing hold of the gun, or the hand in which it was held. The bystanders becoming frightened, ran away, and as they...