Territory of Arizona v. Kay

• Decision Date: 20 March 1889
• Docket Number: Criminal 41
• Citation: 21 P. 152,3 Ariz. 92
• Parties: TERRITORY OF ARIZONA, Plaintiff and Respondent, v. GEORGE W. KAY, Defendant and Appellant
• Court: Arizona Supreme Court

21 P. 152

3 Ariz. 92

TERRITORY OF ARIZONA, Plaintiff and Respondent, v. GEORGE W. KAY, Defendant and Appellant

Criminal No. 41

Supreme Court of Arizona

March 20, 1889

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. J. C. Shields Judge.

Reversed.

E. W Wells, and Herndon & Hawkins, for Appellant.

L. F Eggers, for Respondent.

Wright, C. J. Barnes, J., and Porter, J., concur.

OPINION

The facts are stated in the opinion.

WRIGHT C. J.

At the June term, 1886, of the district court in and for Yavapai County, in this territory, the defendant, George W. Kay, was tried and convicted of the crime of murder in the second degree, and sentenced to sixteen years in the territorial prison. The indictment upon which Kay was tried charged him and one Richard Farley with the murder of one Redmond Costello, on the thirteenth day of February, 1886, in said county. Upon motion of defendant a severance was had, and upon the overruling of the motion for a new trial, based on the grounds, mainly, that the verdict was against the evidence, and that the court below committed certain errors of law, the case has been appealed here.

The first contention of the learned counsel for the defendant and appellant is that the verdict of the jury was against the evidence, and therefore the motion for a new trial should have been sustained. This court has repeatedly recognized the rule, which seems to universally obtain, that where there is any conflicting evidence, although it may greatly preponderate against the verdict, appellate courts will not interfere. The virtue of a motion for a new trial, however, is not only to call attention of the court to the evidence, but to confer upon it power to examine and see whether the evidence justified the verdict or not. It would, therefore, be entirely competent for this court to examine the evidence in the case at bar, if it were not for the fact that no bill of exceptions has been preserved, or statement of facts agreed to by the parties, or fixed by the judge. The notes, or what purports to be the notes, of the court reporter, written out from his short-hand notes, without even his affidavit annexed thereto, will not do. This report of the evidence was not intended as a substitute for a bill of exceptions, or an official statement of facts. The one imports absolute verity; the other, at most, is only prima facie true. Hence, we cannot here examine the first question raised by the motion for a new trial. See People v. Padillia, 42 Cal. 535. Perhaps we would not do so any way, as this decision upon the other points raised will ultimate in a new trial of the case. We entertain no doubt that manifest errors of law should be corrected, even without a bill of exceptions or statement of facts.

The first error of law complained of consists of the following portion of the charge given by the court to the jury "In this case it is not denied, but is admitted, that the defendant, Kay, at the time named in the indictment, fired the shot that killed Costello." We think this was error. The record in this case shows that the defendant, upon being formally arraigned, entered a plea of "not guilty," under the force of which nothing was admitted. Whether it had been proven that he fired the fatal shot or not was purely a question of fact for the jury alone to determine. It was not for the court to tell them what facts had been proven; and to tell the jury, under a plea of "not guilty," that it was not denied, but was admitted, that defendant fired the shot that killed deceased, was equivalent to telling them that these facts had been proven. "To questions of law the court responds, and to questions of fact the jury." This is a most salutary rule, and embodies the accumulated wisdom of many ages, acquired in trial courts. It is therefore the exclusive province of the jury, aided by the court only as to questions of law, to say what fact or facts have been proven, and what not. Whenever the court assumes that any facts have been proven in a case, it at once trenches upon the province of a jury, and commits error. As the supreme court of California, in People v. Strong, says: "In giving the instruction under consideration, the court assumed that the defendant had made confessions. Even if the evidence had tended to prove that the defendant had in any degree admitted or confessed participation in the crime with which he stood charged, it was...