LOUIS H. STRICKLAND and HAROLD C. UHLER, Appellants,
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Robert E. L. Shepherd and Mr. John C. Lee (Mr. H. M. Fennemore, of Counsel), for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Riney B. Salmon, Assistant Attorney General, and Mr. George T. Wilson, County Attorney, for the State.
[37 Ariz. 371] LOCKWOOD, C. J.
Louis H. Strickland and Harold C. Uhler were jointly informed against by the county attorney of Maricopa county for the crime of murder. They were tried jointly, and both found guilty of manslaughter, and from the verdict and the judgment entered thereon they have brought this appeal.
There is considerable conflict in the evidence, but the jury has resolved all such conflict against defendants, so far as it is necessary to sustain the verdict, and our statement
of the facts is based upon the state's theory of the case, to the extent it is justified by the evidence.
Dr. M. Blasse at one time built and owned a tuberculosis sanitarium on the Black Canyon road in Maricopa county. At the time of the occurrences out of which this case arises she was dead and her estate was in the course of probate, Mr. John C. Lee being the executor, Mrs. Flora Weaver being in possession of the sanitarium property under a lease. There were several houses on the premises, and on the 9th of November, she, her son Harold McKenzie, and Harry Cornell, the deceased, were occupying one of the houses. A tubercular patient, Fred Wallis, was living in another cottage located near what was called, during the trial, "the big house."
The sanitarium property was heavily mortgaged, and at some time before November 9th the mortgagee had started foreclosure proceedings. Shortly after they were begun Lee, as executor, made arrangements for the sale of the premises to defendant Uhler, receiving $200 on the purchase price, the balance to be paid at the rate of $165 per month for a year, and at the end of the year the entire sum still due to be taken up.
On the night of the 8th of November Uhler attempted to move into one of the houses on the premises, [37 Ariz. 372] and was only prevented from doing so by Mrs. Weaver's insistent objections thereto. In fact, the bitterness between her and Uhler was so great that a deputy sheriff who was present during the conversation told Uhler that unless he proceeded to get possession legally there might be a killing over the matter, and that he had better stay away. Notwithstanding that advice, on the evening of the fatal encounter defendants armed themselves with revolvers, Uhler carrying his in a holster under his left arm, and Strickland carrying his in his pocket. They also took with them two rifles and a number of cartridges, and, together with Uhler's wife and two small children and a Mrs. Fisher, went to the sanitarium premises and proceeded to move certain of Uhler's household goods which they had brought with them into the big house. Wallis was sleeping when they arrived, but the noise made by them awakened him, and he inquired who they were and what they were doing. No direct answer was made, but he heard someone say, "He don't amount to anything; have you got your gun?" He immediately went to the house occupied by Mrs. Weaver, McKenzie and Cornell, and told them that someone was moving into the big house. They all went to that house, and Uhler and Strickland were requested to leave. They refused to do so; one word led on to another until a general fight resulted, in the course of which Cornell received a gunshot wound from a revolver in the hands of Strickland, from which wound he subsequently died.
These facts are not seriously disputed by any of the testimony. We shall consider later any other portions of the evidence that may be necessary in order to pass on the various assignments of error.
It is the theory of the state that defendant Uhler became determined to take possession of the premises at all hazards, and that Strickland agreed to [37 Ariz. 373] aid him, and that in pursuance of such determination they armed themselves and went there with the intention of resorting to such force as might be necessary to establish such possession, and that in the fight which arose from the attempt of Mrs. Weaver and her friends to eject them Strickland intentionally shot Cornell. Defendants, on the other hand, insist that they had been informed by Lee on the afternoon of the 9th that Mrs. Weaver was willing they should move into the big house immediately if they would give her a reasonable time to remove from the balance of the premises; that, relying on this statement of Lee, they did so move in, and that, when Mrs. ...