APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. William J. Fellows, for Appellant.
Mr. Joe Conway, Attorney General and Mr. W. E. Polley, his Assistant; Mr. Harry Johnson, County Attorney, and Mr. Earl Anderson, his Deputy, for the State.
[50 Ariz. 109] ROSS, J.
The appellant, Ben Knight, was tried in the superior court of Maricopa county for murder in the first degree and found guilty. He was sentenced to suffer death, that being the penalty fixed by the jury in its verdict. In his appeal he complains (1) of the court's refusal on his motion to withdraw from the jury first-degree murder, there being no evidence, as he contends, to sustain such degree; (2) of error in instructions "in that the court did not sufficiently define 'robbery' or 'perpetration' and did not explain the difference between robbery and larceny, which was misleading to the jury to the prejudice of defendant"; (3) of the court's refusal on his motion to declare a mistrial on the ground that "there had been distributed information and instructions" to the jury, in pamphlet form, purporting to be signed by three of the judges of the superior court of Maricopa county.
The facts necessary to a consideration of these assignments are almost entirely circumstantial and may be stated as follows: On December 29, 1935, about six miles southwest of Coldwater, in a thicket of desert growth some fifty feet from a little traveled desert road, in a cotton picker's sack, was found the dead body of J.C. (also known as Charlie and Chuck) Kalb. Fractures of the skull, inflicted with a blunt instrument, were the cause of death. Tracks of an automobile indicated the body had been carried there. There was nothing in the dead man's clothes, such as cards, letters or papers, or other effects, by which he could be identified. Later, about January 5, 1936, two local residents, while traveling a road near the Gila River, had their attention attracted to marks on the ground indicating that something and been dragged across the road and, following these marks into a nearby thicket of salt cedar, discovered two puddles of blood, a wrench, a pair of pliers, and the butt of cigarette. [50 Ariz. 110] There were no signs of any struggle in the road or elsewhere. This place is about one or one and one-half miles from where the dead body of Kalb was found and in the Gila River bottom.
Appellant being suspected of the killing was located and arrested at Venice, California, on or about January 12, 1936.
While here in Arizona he was living with a woman, by the name of Vesta Baker, as his wife, and her two minor children, and during the months of November and December they lived near Coldwater and worked as cotton pickers. The deceased also was a cotton picker and he and appellant first met near Buckeye, a few miles west of Coldwater. About that time appellant sold his second-hand automobile to someone near Buckeye. The deceased owned a Studebaker Big Six coach, two-door sedan, and he and appellant made a trip into California in it looking for work, but returned along about December 23d. They were gone only a few days. These two men were together in and about Coldwater for two or three days before Christmas. The Baker woman lived a few miles from Coldwater, on the south side of the Gila River, and on Christmas Day she had the appellant and the deceased at her home for Christmas dinner. On the 26th day of December appellant, Kalb, and Mrs. Baker and her children moved to Phoenix and rented
and moved into a cabin of the Rainbow Auto Court on East Van Buren Street. The owner of the cabin testified:
"He (appellant) asked me how much the cabin would be and I asked him how many people he had and he said there was himself and his wife and two children and his brother-in-law, and he says his brother-in-law would sleep in the car, but that he would only be there a day or two, and so I told him it would be $2.50 a week, and he rented the cabin."
[50 Ariz. 111] The deceased's possessions consisted of a supply of bedding, camping equipment, and the Studebaker, and all these were moved to the cabin.
On Friday morning, December 27th, appellant and deceased left the cabin in the Studebaker in search of work. The deceased never returned, but appellant did late that evening and inquired of Vesta Baker if deceased had come in. It appears that after deceased and appellant left the auto court they first went to Grand Avenue to several lettuce sheds in search of work. They then vis i ted a lettuce shed south of Tolleson. About 2 o'clock they appeared at Coldwater and loitered around there until about ...