Encinas v. State , 26 Ariz. 24 ( 1923 )

ROSS, J.

— The defendant, upon a charge of murdering Dr. Wallace G. Eandell, was convicted and sentenced to life imprisonment. She appeals from the judgment of conviction and the order overruling her motion for a new trial.

Her first assignment of error is the order overruling her challenges for cause to the following trial jurors: Ed Goldberg, E. B. Hancock, G. G. Martin, O. H, Bolt, George Boring, J. M. Smith, A. L. Mc-Cann, D. C. Hollinger, J. P. Shepard, E. E. Eogers and George Saiger. This will be treated as eleven assignments, although it appears as one. The challenges where made were individual, and in each case upon a different state of facts brought out. on the juror’s voir dire. This is the way defendant looked at the assignment, for she has not argued all the challenges together. She has taken them up singly, or such of them as she deemed worthy of argument, and pointed out her reasons for making each challenge, together with arguments and authorities in support thereof. She has not shown or attempted to show (either in brief or oral argument) wherein E. B. Hancock, G. G. Martin, George Boring, D. C. Hollinger, J. P. Shepard or George Saiger were for any reason whatever disqualified to act in her case. We therefore shall treat so much of this assignment as is directed to the order overruling chailenges to these jurors as abandoned, and examine those rulings only that defendant has seen fit to insist upon in brief and oral argument. We do this the more readily because we feel certain that the learned counsel who represents defendant on this appeal has not overlooked anything that could or might reasonably aid his unfortunate client.

The challenges disallowed and urged as erroneous were those to the following jurors: Ed Goldberg, O. H. Bolt, J. M. Smith, A. L. McCann and R. R. Rogers. None of these was sworn or served as a juror in the case. They were all peremptorily challenged and stricken by the defendant. It is contended defendant was wrongfully compelled to exercise five of her ten challenges upon persons who should have been excused upon her challenge for cause, and that her legal or statutory rights were curtailed or taken away from her to that extent. We have carefully looked into the qualifications of the twelve jurors who were sworn and served and find them all — as the questions and answers on their respective voir dire indicate — free from any disqualification for any cause stated in the statute. Eleven of them were in that respect satisfactory to defendant, or at least were not challenged by her. One of the jurors, G. G. Martin, was challenged for cause, but the overruling of the challenge is not urged here as error, and if it were it would be without merit, as there is no fact in the record to sustain any statutory ground of challenge. Another thing, the challenge was in this language: “I challenge juror for cause.” This challenge presented no issue to the court. To be effective the specific ground of challenge should have been stated. Booth v. Territory, 9 Ariz. 204, 80 Pac. 354; Leigh v. Territory, 10 Ariz. 129, 85 Pac. 948; People v. Owens, 123 Cal. 483, 56 Pac. 251. It is possible the challenge, taken in connection with the trend of the examination of the juror on his voir dire would indicate the particular ground of challenge, and if as to this júror the record showed that he was biased or prejudiced we might think it necessary to hold the challenge sufficient, but the record does not so show.

We conclude the facts of this case, for all practical purposes, places it in the same class and subjects it to the same rule as announed by the California courts, from which state our Penal Code, including part governing defendant’s rights of challenge to individual jurors, was largely taken. See Cal. Pen. Code, §§1073-1088. The rule there is that the order overruling challenge for cause must amount to prejudicial error in order to require reversal, and is very well stated in People v. Johnson, 57 Cal. App. 391, 207 Pac. 281.

“Appellant also complains that the trial court erred in disallowing his challenge for cause, interposed to one of the jurors on the ground of bias. The juror was not sworn and did not serve as such on the trial, having been subsequently excused by appellant on a peremptory challenge. It appears from the record that appellant exhausted his ten peremptory challenges, but it does not appear that he had occasion or desired to exercise an additional peremptory challenge. There is nothing to indicate that any of the jurors who served were objectionable to appellant, or that each and all of the twelve jurors finally accepted and sworn were not entirely satisfactory to him. Under these circumstances it is unnecessary to determine whether or not the ruling was erroneous, as it did not amount to prejudicial error and would not warrant a reversal. People v. Kromphold, 172 Cal. 512, 519, 520, 157 Pac. 599; People v. Schafer, 161 Cal. 573, 576, 119 Pac. 920.”

This rule is both the constitutioüal and statutory rule in this jurisdiction. Section 22, art. 6, Const.; section 1170, Pen. Code.

Defendant exercised all of her ten peremptory challenges. Five were used on jurors that she had unsuccessfully objected to for cause. Just why one of the remaining five was not employed on juror Martin is not apparent. Defendant might have thought him less objectionable than any of the five stricken, and against whom she had interposed no objection for cause, and if the record showed Martin was in fact disqualified, and that a proper challenge had been made, the court might feel bound to hold the order disallowing such challenge error. In People v. Kromphold, 172 Cal. 512, 157 Pac. 599, supra, the court quotes from People v. Schafer, 161 Cal. 573, 119 Pac. 920, supra, as follows:

“ . . . The important thing is that it does not appear that an objectionable juror was forced upon the defendant.”

We think that is clearly the situation here, because Martin was not disqualified or legally objectionable. Even though the court may have erred in disallowing the five, or some of the five, challenges made by defendant for cause and urged on this appeal as erroneous, the record disclosing that the twelve jurors who served were not disqualified, such disallowances “did not amount to prejudicial error, and would not warrant a reversal.”

Upon the request of defendant the witnesses were put under the rule or, as Professor Wigmore would say, sequestered during the taking of testimony. Mrs. Margaret Randell, wife of the deceased, was not listed as one of the prosecution’s witnesses, and was not used as such in chief. After the defendant had testified in her own behalf, Mrs. Randell was called for the purpose (as stated by the county attorney) of rebutting defendant’s testimony. Defendant objected to her testifying on the ground of the nonobservance of the court’s order. The county attorney explained to the court that it could not have been foreseen that Mrs. Randell would be used or needed as a witness, and that hence she was not placed under the rule, and that her testimony was being offered to rebut that of defendant.

It may be assumed, in passing upon the question thus raised, that both the witness and the prosecution acted in good faith, and with no design to secure 'any undue advantage of the defendant. It is not like a case where the witness who has been placed under the rule has knowingly ignored it,- or where the party using the witness has by trick or design avoided the rule or permitted the person to be present during the taking of testimony, knowing all the while he would be called as a witness. If it were we might feel compelled under the authorities to hold the ruling on this objection to be error. 3 Wigmore on Evidence, §§ 1837-1842; 26 E. C. L. 1058, §§ 65, 66, 67. In the circumstances the ruling appears to be correct.

The next complaint is of the admission of the testimony of Charles T. Henderson concerning a conversation he had with defendant, some six months before the killing of Dr. Eandell, in which defendant stated Mrs. Eandell had accused her (defendant) “with hurting the Doctor’s practice,” and in which defendant said of Mrs. Eandell, “She is trying to give me some trouble and she will pay for it some day. ’ ’

The ground of objection to this testimony was that it had nothing to do with the deceased, but was a threat directed solely at another person. We think it highly competent 'as bearing upon the question of motive. The most effective as well as costly “payment” by Mrs. Eandell would be the taking of her husband, by whatever means and especially by violence. •

It seems that in 1918 Dr. Eandell and Mrs. Eandell had become somewhat estranged from each other, and this was known by the defendant; the fact being developed upon her cross-examination. Mrs. Eandell was asked about tbe same matter, and over tbe objection of defendant was permitted to tell of tbe estrangement, and about a visit to her by defendant, and tbe purpose of sucb visit, as disclosed by wbat was said by defendant. Mrs. Eandell testified tbe defendant on tbis visit said to ber: “ ‘Mrs. Eandell, I will give you tbe papers — everything for proof, so that you can get your divorce.’ I said, ‘I don’t want tbe papers, I have no use for them, and doctor does not want a divorce; that is all over.’ ” That thereupon defendant said: “You are a baby — do you believe wbat be says?”

Tbe grounds of objection to tbis testimony were that tbe witness, notwithstanding tbe rule, bad remained in tbe courtroom and listened to all tbe testimony, and that said testimony was not rebuttal but new matter in its entirety. Tbe first objection is disposed of in an earlier part of tbe opinion. Tbe second goes to tbe order of tbe introduction of tbe testimony. It is obvious that tbis testimony was com * petent for tbe purpose of showing interest and motive, but would more properly have been admitted as a part of tbe case in chief. It was irregular for tbe court to admit it as rebuttal, for sucb it was not. Tbe irregularity, however, was not of a prejudicial nature, and consequently not a ground of reversal.

“Tbe courts are agreed . . . that whether there shall be a departure from the usual order of proof rests largely in the discretion of tbe trial court, and that an appellate court will interfere only where there is an abuse of discretion.” 26 E. C. L. 1037, §42.

Tbe defendant bad testified that she killed Dr. Eandell in self-defense; that she bad in ber possession a letter and some souvenirs, consisting of handkerchiefs and hairpins, tbe doctor wanted; that be offered ber $2,000 for them, which she refused; and that he then took np a pair of scissors and started toward her in a threatening manner, stating that he would kill her, whereupon she shot him. The “letter” referred to was not in fact a letter but a clipping that had been cut out of a newspaper — the defendant said the Los Angeles “Examiner.” Besides showing it to the deceased, defendant had also shown it to Mrs. Randell. On her examination Mrs. Randell was asked the contents of this clipping. She explained that it was a question and answer, the question, in substance, being, “What would you do if your husband were untrue to you?” and the answer, in substance, being-, “I would go brazenly (bravely) on and make the best of things, and that those things by and by righted themselves.” Witness further stated this article was signed “M. T. R.,” which happened to be her initials, and was dated “Hyland Park, Chicago.” She denied having anything to do with its composition or publication. Defendant had testified to the contents of clipping with an entirely different version. According to her statement it was a history of an escapade of Dr. Randell’s with one lone Powell, and was written by Mrs. Randell.

The objection to Mrs. Randell’s testimony was general, and that it was not rebuttal. Its admission over this objection is assigned as error. Mrs. Randell’s testimony clearly rebutted that of defendant, and was properly admitted for that purpose.

The defendant complains of the court’s instruction in regard to self-defense. After informing the jury that defendant had a right to defend herself against actual or apparent danger, in ample and correct form, as conceded by defendant, the court further said:

“The defendant is not necessarily justified because she actually believed that she was in imminent danger. When the danger is only apparent and not actual and real, the question is, Would a reasonable man under the circumstances be justified in such belief?”

No authority is cited that condemns this instruction, and we are unable to see wherein it is wrong. Section 181 of the Penal Code of 1918 very explicitly states the rule as contained in the instruction. It reads as follows:

“A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which, homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.”

See, also, Hicklin v. Territory, 9 Ariz. 184, 80 Pac. 340; Bryant v. Territory, 12 Ariz. 165, 100 Pac. 455.

Defendant further complains because the court refused to give her requested instruction covering self-defense. The court’s instructions on the right of self-defense were as full and complete and as favorable as the defendant could ask, and covered every ground in the requested instruction. The requested instruction was at fault in leaving out the statutory standard of fear, as contained in paragraph 181, supra, and in making the fear of the defendant the standard, rather than that of a reasonable person. The court very properly refused such requested instruction.

Finally, it is contended the verdict is not supported by the evidence. We will not undertake to set out the evidence or analyze it, as to do so would serve no useful purpose. As usual in such cases, the testimony is not all one way. It would be difficult, however, to say wherein the state’s case was not made out or wherein it was overcome or defeated, unless we should accept defendant’s testimony as true and that of the prosecution as false. It was solely for the jury to determine that controverted question, and we are bound by that determination.

The judgment is affirmed.

McALISTBR, C. J., and LYMAN, J., concur.