RICHARD N. BURROWS, Appellant,
APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Judgment reversed and case remanded for new trial.
Mr. E. T. Cuisick, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Arthur T. La Prade, Assistant Attorney General, and Mr. George T. Wilson, County Attorney, for the State.
[38 Ariz. 102] LOCKWOOD, J.
Richard N. Burrows, hereinafter called defendant, on the seventh day of June, 1929, was informed against by the county attorney of Maricopa county for the crime of murder, alleged to have been committed April 26th,
of that year. He was duly tried on such information, and the jury returned a verdict finding defendant guilty of murder in the first degree, fixing the penalty at death, and, from the judgment rendered on the verdict and the order overruling the motion for a new trial, this appeal has been taken. With the exception of two points, which we shall refer to in the course of this opinion, there is singularly little conflict in the evidence, and we therefore state the facts as follows:
Defendant, whose home was in Chicago, was a boy of eighteen or nineteen, and during the spring of 1929 was at a military school in Delafield, Wisconsin. His closest friend there was one Milton Drucker. The two boys apparently came to the conclusion they would leave school for the purpose of seeing the country, and, taking a car belonging to the Drucker boy's parents, started west. They were at that time in the possession of some fifty-five dollars in cash, while Drucker had a small amount of money in bank. After some days' travel they reached Phoenix and were there detained by the police at the request of Drucker's parents. The latter's mother came on from San Diego, where she had been staying, and took her son back to Chicago. Defendant asked permission to go back with them, but was informed by Mrs. [38 Ariz. 103] Drucker that his adopted parents had decided it would be a good lesson for him if he had to shift for himself and go to work, and that for that reason she would not take him. He was alone in Phoenix, unacquainted with anyone except the police who had had him in charge for a few days, and substantially, if not entirely, without money. He determined to try to get back to Chicago, and beat his way by railroad as far as Aguila, Arizona, where he discovered that he was on the way to Los Angeles instead of Chicago. He then decided to try to get back to Phoenix, where he had left a suitcase containing personal effects, and make a new start for Chicago, and seeing one Jack Martin, whom we shall hereafter call deceased, at a filling station in Aguila, and discovering the latter was going to Phoenix, asked if he might ride with him. Deceased answered affirmatively, and the two started to Phoenix in the latter's car.
Deceased was either carrying intoxicating liquor in his car, or secured some along the road, for by the time they reached Morristown, a small town some fifty miles northwest of Phoenix, he was so obviously intoxicated that the service station proprietor there suggested to the two that defendant had better drive, to which deceased assented. They left Morristown, and some few miles beyond it defendant shot and killed deceased, who was at that time sitting slumped down in the car in a drunken stupor. Defendant drove the car off the road to a small arroyo, and after taking what money deceased had on his person, placed the body in the arroyo and partially covered it with dirt, took the car, and went on to Phoenix, where he stopped at the police station and secured his personal effects. He then drove on to Denver, Colorado, where he was apprehended and brought back to Phoenix. This statement of the facts is based on defendant's own testimony, and in the absence of [38 Ariz. 104] anything further unquestionably establishes beyond the peradventure of a doubt a case of murder in the first degree.
The only defense offered at the trial was one of involuntary intoxication. Defendant testified that shortly after they left Aguila deceased began urging him to drink some beer which he was carrying in the car. Defendant had never tasted intoxicating liquor, and objected most strenuously, whereupon deceased became very abusive, stating that, if defendant would not drink he would put him out of the car. Defendant, being alone, penniless, and fearing that he might be ejected and left on the desert, did drink three or four bottles of the beer, and since he was unused to intoxicating liquor, and had had little to eat in the preceding twenty-four hours, began to feel very queer.
When the parties reached Wickenburg, deceased procured some whisky, and with increasing vehemence urged defendant to partake of that. At first the latter remonstrated, but finally, as he states, through fear of what deceased might do to him, did drink some whisky. He claimed that its effect was to make him sick at the stomach and dizzy, until he had very little idea of what was happening, and that at the time the shooting occurred he was so dazed that he was unable to realize what was happening until after the fatal shot was fired, when his mind cleared up and he did realize what he had done, and that his conduct thereafter was due to panic at realizing his situation, and an effort to escape from the consequences thereof.
There are some eight assignments of error which raise certain legal propositions which we shall discuss as seems advisable. The first is the question of the age of defendant at the time the killing occurred, and whether or not, in view of the record as presented to [38 Ariz. 105] us, the court committed prejudicial error in its treatment of that issue. It appears that defendant was apprehended some time in May, 1929, and returned to Phoenix. The information on which he was tried was filed June 7th. On the 4th of September, and for the first time during the progress of the proceedings, it was suggested to the Honorable M. T. PHELPS, in whose division of the superior court of Maricopa county the proceedings were pending, that defendant at the time of killing was under the age of eighteen years. The point was raised on a plea in abatement, made in a
formal manner, and a continuance of sixty days was requested by defendant for the purpose of making a showing as to his age. The court denied the sixty days, but gave defendant up to the time of trial, which had been set for hearing on the 23d of September, for that purpose. No further proceedings were taken in the matter until the case was called for trial on the 23d of September, whereupon the defendant, through his counsel, presented the plea in abatement and asked for a ruling thereon.
The plea set up, in substance, the various proceedings which had been had in the case up to that time, and then alleged that the defendant at the time of the killing was under the age of eighteen years. There was considerable discussion in regard to the matter, and defendant demanded a jury trial on the issue of his age. The trial court denied this demand, and then made the following ruling:
"Gentlemen, let the record show that pursuant to the order of the Court entered on the 4th day of September, 1929, as shown by the corrected minutes of that date, and further, the question of the age of the defendant having been suggested to the Court both by motion for a continuance supported by an affidavit and also by a purported plea in abatement, the Court at this time will hear proof of the age of the defendant."
[38 Ariz. 106] Defendant then, while expressly stating that he did not waive his plea in abatement and his right to a jury trial thereon, did offer evidence in regard to his age. No formal order was made suspending proceedings in the criminal case and remanding them to the juvenile court. What actually happened was that, after the ruling which we have just quoted, the jury was excused and the trial judge, sitting on the bench in the courtroom, proceeded to hear evidence as to defendant's age. Considerable testimony on this point was offered, part of which would sustain the view that defendant at the time of the killing of deceased was under the age of eighteen, and part of which would sustain a finding that at that time he was over that age. It was admitted by all parties that at the time the information was filed he was over eighteen years of age. The court then stated formally:
"Hence the Court finds, as a matter of fact, that the defendant is nineteen years of age and is subject to the jurisdiction of this Court on the trial of the charge now pending against him."
The first matter for us to determine is the meaning of the Arizona statutes governing criminal proceedings against children under the age of eighteen years. These statutes, so far as material for the determination of this case, read as follows:
"1928. Superior courts exclusive jurisdiction; definition of terms; power of judges and officers. The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting neglected, incorrigible, or delinquent children, or children accused of crime under the age of eighteen years . . . 'delinquent child' shall mean a child under such age, including such as have heretofore been designated 'incorrigible children,' who may be charged with the violation of a law of this state or the ordinance of a town or city.
"The judges of said courts shall hold examinations in chambers of such children concerning whom proceedings [38 Ariz. 107] are brought, in advance of any criminal prosecution of such children, and may suspend criminal prosecution for any offenses committed by such children. The records of the proceedings of such court for such purposes shall be kept in a docket separate from all other proceedings of said court. In the absence of a judge from his county, the court commissioner in such county shall have the power, and may make orders for the temporary care, custody and ...