APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.
Mr. H. H. Baker and Mr. Bernard and Caine, for Appellant.
Mr. Arthur T. La Prade, Attorney General,Mr. James R. McDougall, Assistant Attorney General, and Mr. Glenn Copple, County Attorney, for the State.
[42 Ariz. 360] LOCKWOOD, J.
Severo Miranda, hereinafter called defendant, was informed against for the crime of murder. He was tried before a jury which returned a verdict of murder in the second degree and recommended extreme leniency. From the verdict and the judgment pronounced thereon, this appeal is taken.
In order that we may discuss properly the assignments of error, a brief summary of the evidence given at the trial is necessary. The undisputed facts are as follows: Defendant and one Vicenti Alvidres, hereinafter called deceased, had been friends for three years or more, during most of which time they were both employed by the Southern Pacific Railroad Company as section men, working part of this time at the same place and part at different localities along the line of the road. On the twenty-second day of October, 1932, deceased, who was then working on a section gang with headquarters at Aztec, Arizona, came to Yuma to visit defendant who was working at the latter place. The latter lived in a two-room apartment which was part of a building maintained by the company for the use of its employees. Along about five o'clock in the morning of October 23d another employee of the company named Hurtado, who lived near, heard defendant calling and went to his apartment. He found the latter on his hands and knees on the floor apparently vomiting. Deceased was lying on a double bed in the room with his head covered with blood from a cut on its side made by some sharp instrument, so that the skull was severed and part of the brains oozing out therefrom. A bloody
ax was lying on his body and he was still [42 Ariz. 361] living but unconscious. Hurtado immediately called for help and both deceased and defendant were taken to a hospital where the former shortly died as the result of the wound in the head. At the hospital it appeared that defendant had a slight cut on one of his fingers and that a bone therein had been broken. A coroner's jury was impaneled at which evidence was given of the foregoing facts, and defendant, who was present, was asked by the justice of the peace whether he desired to make a statement to which he replied that he did and testified under oath in substance that shortly before he called to Hurtado he was awakened by feeling a warm liquid which afterwards turned out to be blood on his face and found a man who appeared to be a negro standing over him with one knee pressed in his stomach and a knife held to his throat. There was another negro also in the room who rifled the clothes of deceased and defendant and then the two men pulled defendant off of the bed and, as he testified, pushed him underneath it and went away. The officers who arrived at the scene of the tragedy immediately after they were called examined the room carefully, looking particularly under the bed, and stated at the trial that there were two pair of shoes projecting from under the bed and that there was a great deal of dust and dirt thereunder which apparently had not been disturbed for some time. There was also testimony at the trial that about the 3d of October defendant went to Aztec to visit the deceased, arriving there some time in the night, and that when he tried to enter the room of deceased he had with him an ax, and when deceased asked his purpose with the ax stated he brought it along to protect himself from the dogs at the house. Defendant on the stand denied absolutely that he had gone to Aztec on the 3d of October, claiming that that night he was in Holtville, California, but produced no other evidence to sustain this contention, nor did he claim [42 Ariz. 362] at the trial that any incident had happened on the alleged trip to Holtville which would enable him to produce a witness that he had been there. During the course of the trial the county attorney had brought into the courtroom the bed on which deceased was lying when he was seen by Hurtado and the officers on the morning of the 23d, together with all the blood-stained bedding, and the same was set up in the presence of the jury and exhibited to them over the most strenuous and repeated objections of counsel for the defendant. There was some other evidence given, but it is not necessary to discuss it in passing on the assignments of error.
It will be seen from the above recital that the evidence upon which defendant was convicted was entirely circumstantial so far as his connection with the homicide was concerned. There is and can be no doubt that deceased was murdered by someone, defendant claiming that it was done by two negroes, and the jury might have found his story to be true. On the other hand, the circumstances under which deceased was found, taken into consideration with the other evidence, is sufficient to sustain a verdict of second degree murder against defendant, nor is there any claim that it is not.
The first assignment of error is that the court refused to grant a motion to set aside the information, made on the ground that the committing magistrate at the preliminary examination did not cause the complaint to be read to the defendant. It appears from the reporter's transcript of the examination that defendant was there represented by counsel. After one witness for the state had been examined his counsel moved to dismiss the complaint and discharge the defendant because the complaint had not been read to him. The trial magistrate stated:
". . . The complaint was read to the defendant before, and would have been read on this occasion if [42 Ariz. 363] he had not been represented by an attorney, but he was represented by an attorney, and the attorney asked for and read the complaint himself. . . ."
It is true that section 4950, Revised Code of 1928, says:
". . . At the examination, the magistrate shall first read to the defendant the complaint upon which the warrant of arrest was issued, unless such reading be waived by the defendant. . . ."
While the failure to read the complaint was therefore erroneous, yet in view of the fact that defendant was represented by an attorney who had read the complaint, and that defendant himself had previously had it read to him, we think it would be entirely too technical to reverse the case on that ground, since it is obvious that none of the defendant's substantial rights could have been prejudiced. People v. Stein,23 ...