Territory of Arizona v. Gomez

• Decision Date: 06 July 1912
• Docket Number: Criminal 306
• Citation: 14 Ariz. 139,125 P. 702
• Parties: TERRITORY OF ARIZONA, Appellant, v. VICTOR GOMEZ, Respondent
• Court: Arizona Supreme Court

125 P. 702

14 Ariz. 139

TERRITORY OF ARIZONA, Appellant, v. VICTOR GOMEZ, Respondent

Criminal No. 306

Supreme Court of Arizona

July 6, 1912

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Edward M. Doe Judge. Reversed.

The facts are stated in the opinion.

Mr. G P. Bullard, Attorney General, for Appellant.

No appearance for Respondent.

OPINION

FRANKLIN, C. J.

The defendant was indicted for assault with a deadly weapon. From a judgment of acquittal the territory appeals on the questions of law.

In criminal actions the territory (now state) may appeal to the supreme court on questions of law alone. It is so provided by paragraph 1038 of the Penal Code of Arizona of 1901. This is such an appeal. The determination of this appeal can, of course, have no effect on the acquittal of the defendant which is a bar to any further prosecution.

The appeal is predicated upon the following state of facts recited in the brief of the attorney general, to wit:

"The defendant was indicted for an assault with a deadly weapon committed upon one J. E. Mahurin on July 9, 1910, in Yavapai county, Arizona. Mahurin and his wife were driving from their home to Del Rio, when they saw defendant herding a band of sheep upon Mahurin's homestead, whereupon the Mahurins drove off the road and in the direction of defendant some fifty to seventy feet. Mahurin then asked defendant whose sheep he had, and the defendant said, 'I no sabe.' Mahurin then said, 'Yes, you do. Aren't they Ben Yeager's?' and at the same time got out of his buggy, saying to defendant, 'Here is my corner post,' and asked defendant to keep the sheep off his land. At this time defendant drew his pistol, cocked it, and pointed it at Mahurin, and advanced toward Mahurin from a distance of about sixteen feet to within six feet, saying, 'Qui dado, qui dado.' Mrs. Mahurin, discovering the imminent danger in which her husband was, said to him, 'Come and get in the buggy, quick, he is going to shoot you.' Mahurin, looking at defendant, who was then pointing a pistol at him and advancing toward him, said, 'Don't shoot, I am not going to hurt you,' and retreated into his buggy. As the Mahurins drove away, the defendant returned the pistol to his scabbard. Both Mr. and Mrs. Mahurin said that defendant cocked the pistol, and held it on Mahurin until he got into his buggy, saying all the time 'Qui dado, qui dado.'" The exlamation "Qui dado, qui dado," being interpreted, means "Look out! Look out!"

At the close of the evidence, the defendant's counsel moved for an instructed verdict of acquittal on the ground that "there had been no assault with a deadly weapon proved." The motion was granted, th court observing: "It is a somewhat interesting case, but, under the evidence of the case, I am convinced that a conviction could not be sustained on a technical ground" -- this observation on the part of the court evidently referring to the failure of the evidence to disclose any direct or visual proof that the pistol used at the time of the alleged assault was, in fact, loaded.

The territory assigns error: "(1) The court erred in holding that the pointing of a cocked pistol within six feet of the prosecuting witness in an angry and threatening manner and until the latter returned to his seat in the buggy, advancing on the prosecuting witness all the time, saying, 'Qui dado, qui dado!' (Look out! Look out!), was not an assault with a deadly weapon. (2) The court erred in directing the jury to return a verdict of not guilty under the evidence in this case."

In the adjudicated cases there is a sharp conflict of opinion as to whether the pointing of a firearm at another within shooting distance, in an angry and threatening manner, constitutes an assault with a deadly weapon, if there is no proof in the case that at the time of the alleged assault the firearm was in fact loaded. In State v. Godfrey, 17 Or 300, 11 Am. St. Rep. 830, 20 P. 625, the evidence of the assault tended to prove that the defendant, when not less than thirty yards nor more than seventy yards, pointed a Winchester rifle at a man, and threatened to kill him if he did not turn back. There was no direct evidence that the rifle was loaded, or that the defendant cocked the trigger, or did anything except to point the rifle and express the threat. The court held that under such circumstances it was for the jury to determine the character of the weapon under appropriate instructions, saying: "Some weapons under particular circumstances are so clearly lethal that the court may declare them to be such as a matter of law. Of this class are guns, swords, knives, pistols and the like, when used within striking distance from the victim. All other are lethal or not according to their capacity to produce death or great bodily harm in the manner in which they are used, and of this the jury must always be the judges. It is a matter of fact the termination of which belongs to them. In the case under consideration the gun was a lethal weapon if it was loaded, otherwise it...