Wiley v. State

• Decision Date: 16 February 1918
• Docket Number: Criminal 429
• Citation: 170 P. 869,19 Ariz. 346
• Parties: JOSEPH L. WILEY, THOMAS JOHNS and RAMON SALAZAR, Appellants, v. STATE, Respondent
• Court: Arizona Supreme Court

170 P. 869

19 Ariz. 346

JOSEPH L. WILEY, THOMAS JOHNS and RAMON SALAZAR, Appellants, v. STATE, Respondent

Criminal No. 429

Supreme Court of Arizona

February 16, 1918

[Copyrighted Material Omitted]

APPEAL from a judgment of the Superior Court of the county of Santa Cruz. W. A. O'Connor, Judge. Reversed and remanded, with directions as to Joseph L. Wiley and Ramon Salazar. Affirmed as to Thomas Johns.

STATEMENT OF FACTS BY THE COURT.

The appellants were informed against and tried jointly upon the charge of murder alleged to have been committed on the twelfth day of April, 1916, in Pima county, Arizona, in the killing of one Mary Josephine Walsh Bates. They were convicted of murder in the second degree. In their appeal they complain that the court erred in the admission of evidence, in misdirecting the jury as to the law, in refusing instructions requested to be given to the jury by them, and in not ordering a new trial for insufficiency of the evidence to support the verdict and judgment.

For an intelligent understanding of the errors complained of, it is necessary that a detailed statement of the facts and circumstances of the case be set forth.

Pastime Park, a pleasure resort situate about three and one-half miles north of Tucson, on the Oracle road, was, on the night of the 11th of April, 1916, occupied and used by a circus. About 12 o'clock at night the sheriff's office at Tucson received a telephone call from Pastime Park stating "that a woman had been robbed of two thousand dollars' worth of jewelry and half beat to death," and asking that an officer be sent out to Pastime Park at once. In response to this telephone call, the sheriff secured a public service automobile and directed two of the appellants, Joseph L. Wiley and Thomas Johns, who were deputy sheriffs under him, to take the automobile and drive by the city hall where appellant Ramon Salazar, a city policeman of the city of Tucson, would join them. The automobile, on leaving the city hall, was occupied by the driver thereof and the three appellants. The sheriff had informed Johns and Wiley of the reported assault on the woman and the robbery at Pastime Park, and instructed them to go to Pastime Park, look the matter over, and report by telephone to him at the sheriff's office, where he would remain ready to supply more help if needed. Salazar, while at the city hall, had received a telephone call from Pastime Park advising him of the trouble, and asking for help, the message being, in substance, the same as that received at the sheriff's office.

It was shortly after 12 o'clock midnight when the appellants with the information and instructions above detailed, left the city hall and proceeded north on the Oracle road in the direction of Pastime Park. It must have been a few minutes before that Captain John S. Bates and his wife, Mary Josephine Walsh Bates, left a friend's house in Tucson where they had been spending the evening, for their home situate on the Oracle road, about a mile and one-half north of Pastime Park; for, as the appellants were driving at a rapid rate of speed, they saw a machine ahead of them, which afterward turned out to be the Bates machine. The appellants testify that the machine they saw seemed to be coming in their direction, but, when within a distance uncertain and indefinitely estimated, it suddenly turned and proceeded north in the direction of Pastime Park; that they then directed their driver to speed up, which was done, and, coming upon or near the Bates machine, they claim to have called in a very loud voice to the occupants thereof to "stop," that "they were officers." This was repeated several times, they say, and, receiving no attention or recognition from the occupants in the advance car, the appellant Johns testified:

"I took my pistol and fired a shot toward the wheel, trying to puncture the tire. Q. For what purpose? A. To stop the car. Q. Why to stop the car? A. To find out who the parties were in the car."

He testified, further, that he fired another shot in the same direction a second or two after the first. Wiley fired one shot immediately after and over to the left and away from the Bates car, as he states. Salazar fired the next and last shot in the direction of the Bates car, and, as he states, for the purpose of puncturing a tire. At this time both cars came to a standstill, the appellants' car on the left or west side of the Bates car, and about 25 feet in the lead. The above is the version of the affair as given by the appellants.

Captain Bates testified that he and his wife, the deceased, left Tucson for their country home about five minutes after 12 o'clock at night, going along the Oracle road at the rate of about 25 miles per hour; that he neither met nor saw any other machine than the appellants' on the trip; that he traveled north all the time uninterrupted until overtaken by the appellants; that he was driving the car and his wife was sitting at his left, and while well on the road, and not very far from Pastime Park, his wife remarked to him that a car was following behind; that he looked back and saw the bright lights of a machine following approximately 300 yards in the rear, and a little farther on his wife remarked, "Pull out of the road and let the machine pass"; that he gradually steered to the right until just off the crown of the road; that as he was proceeding along he heard a noise which he thought was either a blow-out or a shot; that he immediately pulled the emergency brake, put on the foot brake, and threw his car in neutral. He then remarked, "We have a blow-out," and turned his head in the direction of the noise. As he remarked, "We have a blow-out," his wife said, "I am shot." When he looked at his wife she was facing to the front, her head having fallen on the back of the seat of the machine. About that instant he saw a flash from which came three shots, which were directed toward him; that at the time of this occurrence the radiator of the appellants' machine was overlapping the tail-board of his machine and was about 25 feet to the left of his machine; that after the machine had stopped the appellants rushed toward his machine, pointing their revolvers in his direction; that one of the appellants stationed himself just to the rear of the seat where his wife was sitting, and the other two began overhauling the two boxes that were in the rear end of the car, stating that "they were officers of the law." One of them said, "We are officers of the law, and have instructions to search you for booze." He said to them, "You have shot my wife"; and Wiley remarked, "That is God damned nonsense"; that Johns said, "Oh, hell, she is just scared to death." The appellants asked Captain Bates why he had turned around, and he said, "I told them I had not turned, that I had not altered my course while coming out." Captain Bates then told the appellants that his wife had fainted, and that he was going to Pastime Park or Charlie Loeb's to get some water to put on her head, which he then did without any interference from the appellants. When he arrived at Pastime Park, about a quarter of a mile north, he dampened his handkerchief in some water, and, on applying it to his wife's face and head, he discovered that she was dead -- that she had been shot. The appellants also went to Pastime Park, and busied themselves in looking up the woman who was supposed to have been beaten and robbed. While engaged in this, they learned for the first time that Mrs. Bates had been shot and was dead. They telephoned, or caused the sheriff's office to be telephoned, what had happened, and remained there until the sheriff arrived and disarmed them.

Appellants deny that they used any profane or gruff language such as Captain Bates charges them with using, or that they, on approaching his car, pointed their pistols at him, or that they examined his car for liquors. Captain Bates was asked to describe the condition of his car as he took that journey northward, with reference to the noise it made. He said:

"The car is very noisy, the road is rough, the chains which hold up the tail-board were rattling up and down on the fenders which are over each rear wheel; in fact, every time I hit a bump they would jump up and down; the muffler of the machine was wide open, and the exhaust is directly in front of the driver, underneath the foot-board."

The driver of the appellants' machine stated that he did not see any machine on his way out, coming in his direction; also that his muffler was wide open; that cut-outs in both cars were open; that before any shots were fired the appellants shouted two or three times, and that four shots were fired by the appellants, "all shots to the right." "I heard Mrs. Bates scream"; that after the cars stopped he did not hear any conversation between the appellants and Captain Bates, only "grumbling"; that he could see a man and woman in the other car, but could not recognize them.

Three of the shots fired may be accounted for as follows: The first struck Mrs. Bates, killing her. One of the shots, perhaps the second, had gone through the tail-board of the Bates car at an angle indicating it must have been shot by someone to the left and in the rear about 20 feet. A third shot, and most likely the one fired by Salazar, struck the left rear fender of the machine at a height about two feet and three inches above the ground. The other shot, if fired toward the machine, evidently missed its mark, as there was no evidence that it hit anything. The first two shots were fired by Johns, the third one by Wiley, and the fourth by Salazar. One witness said the night was cloudy, and others testified that there was no moon. The appellants did not know the Bateses and did not know who was in the...