West v. State

• Decision Date: 29 July 1922
• Docket Number: Criminal 526
• Citation: 24 Ariz. 237,208 P. 412
• Parties: THEODORE WEST, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

208 P. 412

24 Ariz. 237

THEODORE WEST, Appellant, v. STATE, Respondent

Criminal No. 526

Supreme Court of Arizona

July 29, 1922

APPEAL from a judgment of the Superior Court of the County of Mohave. E. Elmo Bollinger, Judge. Affirmed.

Mr Harold Baxter, for Appellant.

Mr John M. Hines, Jr., County Attorney, and Mr. W. J. Galbraith Attorney General, for the State.

OPINION

ROSS C. J.

The appellant, Theodore West, whom we shall refer to as the defendant, was tried and convicted of murdering one Lem Smith, in Mohave county, Arizona, on the twenty-third day of July, 1921. The verdict imposed the death penalty. From an order overruling a motion for new trial and the judgment and sentence of the court, he appeals.

The salient facts disclosed by the record are as follows:

On the morning of July 24, 1921, on the left of the road going south and west from Oatman to Topoc, in Mohave county, the dead body of Lem Smith was found. He had been shot from behind. The bullet entering at the hair line of his neck, had ranged forward and a little downward, severing the spinal cord at the point where it emerges from the skull, and had passed out on the left just below the jawbone. His cap was badly powder-burned where the bullet passed through, showing that he had been shot at close range. About 100 feet east of the place where the body was found were tracks, indicating that an automobile had swerved from the road and run out of the traveled road, but near, and in the same general course, for about 160 feet, when it got back into the road. Blood stains along the track indicated that the hind left wheel had run over the deceased after he had been thrown or had fallen from the car. Deceased's cap was found in the road near where the automobile first diverged from the road.

The evidence further discloses that deceased and defendant, some time in July, left Brownwood, Texas, together in a Ford touring car belonging to the deceased; the latter's destination being Washington state, and the defendant's Southern California. At Magdalena, New Mexico, on July 15th, they met up with two families, G. E. Holdridge, wife and children and E. A. Southwick, wife and children, traveling by automobile to Los Angeles. From that point to Williams, Arizona, the deceased and defendant traveled, and frequently camped, with the Holdridges and Southwicks. The latter detoured from Williams to the Grand Canyon, and defendant and deceased traveled alone to Kingman, arriving at the latter place on July 22d, where they were detained on account of automobile troubles until about 4 P.M. of the 23d. While in Kingman deceased received by wire $100. He also traded a shotgun that he had for a 33-20 Colt's revolver. Cartridges were bought in Kingman for this revolver. Before the deceased and defendant left Kingman the Holdridges and Southwicks had arrived and interchanged greetings with them. Leaving Kingman, after the middle of the afternoon, they arrived at Oatman, twenty-eight miles out, where they went to a restaurant for supper. So far as the evidence shows this was the last time and place Smith was ever seen alive, except by the person persons who murdered him. It was near 6 o'clock P.M. when they left Oatman, going on the regularly traveled road toward California, on which road eleven miles east of Topoc, on the following morning, Smith's dead body was found.

On July 26th defendant was arrested by a policeman on the streets of Los Angeles, and turned over to the sheriff of Los Angeles county. But before his arrest, and a short time after he arrived in Los Angeles, he went to the American Express office and got a suitcase and bag that he had expressed from Ludlow, California, to Theodore West, Los Angeles, and had taken them to a lodging-house where he engaged a room and there changed his clothes. When first questioned after his arrest he denied having any suitcases, and denied that he had changed his clothes. He was taken to the American Express office, and recognized by the agent as the person who had earlier called for the suitcase and bag. From a source other than himself the officers who had him in charge learned the location of the lodging-house where he had engaged a room. With defendant the officers went to this room and there found the suitcase and bag, and, among others, the following articles of personal property that had formerly belonged to the deceased: A revolver (the one traded at Kingman) and some cartridges, a camera, a watch, a $5 war-saving stamp bearing Lem Smith's name, a purse with some paper money in it, blood-stained, parts of envelopes and letters torn up and thrown into a cuspidor, one of which was from a brother of deceased. There was also found a blood-stained shirt and trousers. When asked as to how he came into the possession of the articles belonging to the deceased, he said he had bought them from Smith from time to time, on the trip. J. N. Nolan, deputy sheriff for Los Angeles county, who was present during this time testified:

"He then told the story regarding the killing of Smith. He said he was riding along the road and was asleep in the back seat, head resting on the black grip. He felt as though someone was at his back, and he woke up startled, pulled his revolver from under the grip, cocked it, and shot. He said he heard some noises; someone was trying to hold him up. He said the machine ran down an incline, struck the bank and turned over, and that the body of Smith was thrown out and under the machine, under one of the hind wheels. He said he tried to release the body from under the machine, but he did not have strength enough to do it. He waited a few minutes and sat on the running-board of the machine, and nobody came along. He said that he picked up his two grips, black hand-bag, and the other one, and started to walk across the desert. He thought he had walked 4 or 5 miles, and there three young men came along in a machine and gave him a ride. They took him to a railroad crossing, and there was a freight train there. He told them to take his baggage into Ludlow, California, and he would go in there on the freight train. He said he gave the conductor $2 to carry him in, and the freight train arrived about the same time the machine did with his baggage. Then at the door he heard some noises, and he recognized the three young men who carried his baggage, and he went over to them and asked them to give him the baggage."

W. P. Mahoney, sheriff of Mohave county, relates a confession made by defendant in Los Angeles, as follows:

"It was a conversation, I think, between Detective Nolan and West, in which West says he killed Lem Smith. Then he shaded that, and he said, 'I killed Lem Smith, but I didn't know what I was doing; I was excited.' Then I think it was that Detective Fox asked, 'What were you excited about?' 'Well,' he said, 'I woke up suddenly, and Smith had his hand on my cheek here, through the back seat, and he was shaking me, and I thought Smith was going to rob me.' That was his first conversation. He says, 'I had my gun under my black hand-bag.' He says, 'I pulled up the gun, and when I was pulling it up I capped [cocked] it, and I must have shot Mr. Smith.' He says, 'I didn't intend to do it.' . . . He also said that he left Smith's body in Smith's car, and had started out afoot. He walked about 8 miles until he was picked up by these three men in a Ford car. He also told me, or told all of us there that were in the room, that he paid the conductor $3 to carry him from Danby to Ludlow, $2 or $3. . . . He made rambling statements all the time."

Later, at the preliminary trial, and before, defendant stated, in substance, that he had fallen asleep in the back seat of the car, and suddenly was aroused by someone pulling at his clothes and hollering in a loud voice, "All right; all right"; that in his excitement he reached for the revolver, and while struggling with one of his assailants discharged it; that at the time he saw two men, one on the footboard on each side of the car; that he did not know as a fact whether or not he had shot Smith; that the men who had awakened him held him in duress, and by threatening his life had forced him to go on with them and conceal the details of the incident; that these three men had robbed him of his money and diamonds, and had passed to him all incriminating evidence that they did not want to be hampered with, including the bloody money.

The three men referred to by defendant were L. L. Hawkins, D. F Hawkins and E. A. Corbell, also traveling in a Ford touring car from Electra, Texas, to Taft, California. They were all witnesses at the trial and their testimony, was, in substance, as follows: They arrived in Kingman July 23d, at about 4 o'clock, remaining there thirty minutes, passed through Oatman about 7:30 -- one man, the driver, was riding in the front seat, and two were riding in the back seat. As they were going along the road, about 8:30 or 9 o'clock, the two men in the back seat "saw something beside of the road that did not look right," and as they proceeded they talked among themselves as to whether they should go back and see what it was. They concluded that it might be a hold-up and went on. About two miles farther on they found defendant West with a Ford car, stuck in a hole, and at his request they assisted him in getting the car started. Defendant explained to them that he had been driving all day and was tired, that he had been stuck in that hole a couple of hours and was played out, and he asked one of them to drive his car. L. L. Hawkins drove the Smith car, the defendant riding with him, and the other Hawkins and Corbell occupied the other car from that point on through the Needles and until the Smith car broke down. Hawkins mentioned to the...