APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment affirmed.
Messrs. Favour & Baker and Mr. A. M. Crawford, for Appellant.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, his Assistant and Mr. Carl D. Hammond, County Attorney, for Respondent.
[50 Ariz. 445] LOCKWOOD, J.
Frank Riley, hereinafter called defendant, was convicted of the crime of assault with a deadly weapon upon one Page Theirs, in the superior court of Mohave county, and was sentenced to serve not more than ten nor less then eight years in the Arizona State Prison.
There is a sharp conflict in the evidence admitted at the trial, and counsel for the State and for the defendant each naturally takes that view of the evidence which supports his theory of the case. Since the jury returned a verdict of guilty against the defendant, under our oft-repeated rule we are compelled to adopt the State's theory in so far as it may be supported by any reasonable evidence in the case. Thus taken, the ultimate facts are shown to be as follows.
Mr. and Mrs. Ancel Taylor are reputable and well-known citizens of Peach Springs, in Mohave county, Arizona, and operate an auto camp, service station, trading post, and restaurant at that place. Defendant, a man of about 43 years, came to Arizona some 2 years age, and eventually secured employment as a general handy man around the various enterprises of the Taylors, where he was working at the time of the commission of the crime of which he has been convicted. Page Theirs, who was the victim of the assault, was an employee of the highway department, whose home was in Phoenix but who was temporarily stationed in Mohave county, with Peach Springs as his headquarters. About January 3, 1936, Theirs, together with a
number of other employees of the highway department, attended a birthday party given to the daughter of the Taylors, in their restaurant, Taylor [50 Ariz. 446] also being present. Mrs. Taylor and Riley were both out of town, returning about the time the party broke up. Apparently all the guests at the party indulged in the usual merrymaking of the holidays, and there is evidence that the ornaments on a Christmas tree which was standing in the cafe had been broken up during the festivities. It does not appear, however, that any quarrel or difficulty arose between the guests. About noon of January 19th, Theirs, together with his wife and children, had taken a trip to Hyde Park, a little place not far from Peach Springs, returning about 5:30, and about 7:30 that night he took his 5 year old daughter to the Taylor cafe for dinner. They were accompanied by three other employees of the highway department, named Kellner, Vallandingham, and Dudley, and found one Frank Modina, an employee of the Indian department, seated at the counter eating. Theirs and his party sat down at a table and ordered dinner, this being served some time between 7:30 and 8. The customary closing time of the restaurant was 8 o'clock, and, since there was a show being held in the schoolhouse that night, the Chinese help in the restaurant were very anxious that the customers finish their meals promptly so that they might attend the show. It appeared that Theirs and his party would not be through until some time after 8, so one of the Chinese help left the restaurant, and in three or four minutes the defendant came in the front door, walked behind the counter, and stood there looking at the party. Kenneth Kellner had heard that Riley had a bad reputation for being troublesome and starting fights, and believing that he had come in for the purpose of hastening the party in finishing their meal and leaving the restaurant, made the remark to him, "Frank, we are going to finish our meal and if you are going to throw anyone out, it isn't going to be us." Riley immediately started around the counter [50 Ariz. 447] towards Kellner, and, when he had reached the latter's chair they got into a scuffle, Kellner attempting to push Riley out of the door, which he finally succeeded in doing. No blows, however, were actually struck by either party. A few minutes later, Riley again entered the cafe and was ejected, this time by Kellner and Theirs together. About five minutes later, Riley appeared again behind the counter of the restaurant with a gun in his hand. Kellner and Dudley, other members of the highway party looked up and saw Riley standing there, and Dudley said, "Look out, he has a gun." Defendant profanely ordered the party out of the restaurant, aiming the gun first at Kellner, and then switched it until it was pointing at Theirs, and fired a shot. At the time of Dudley's remark, Theirs was sitting with his back towards Riley. He partially turned around, threw his left hand in front of his face, and started to rise, being about half way out of his chair when the shot was fired. The bullet went through his left hand, the left side of the lower lip and teeth, into the throat, and lodged in his vertebrae. He was so badly wounded that he was still in the hospital at the time of the trial, which was held on the 26th of February, and was unable to be present and testify. Riley immediately left the cafe, and went over to the Taylor home. He was later arrested and tried and convicted, as we have stated.
There are 18 assignments of error which are grouped, as required by the rules, under certain propositions of law. We think, however, on a careful examination that it will be necessary to consider these assignments separately. The propositions of law are generally correct as abstract statements, but are so worded that we cannot determine whether the rule laid down therein was violated, without examining the assignments separately and comparing them with the reporter's transcript of the evidence.
[50 Ariz. 448] The first assignment goes to the action of the trial court in denying the challenge of the defendant to a prospective juror, made on the ground that his answer showed he was not impartial. The question of whether a juror should be excluded on a challenge for cause, on the ground that he will not be fair and impartial is, to a great extent, in the sound legal discretion of the trial court. Burnett v. State, 34 Ariz. 129, 268 P. 611. After reading the examination of this juror on his voir dire, we are of the opinion that the court did not abuse its discretion in refusing to sustain the challenge.
The second assignment is that the court refused to exclude one of the State's witnesses, Kenneth Kellner, when all of the other witnesses were excluded from the courtroom. It is generally advisable in a criminal case that the county attorney
have the prosecuting witness at hand so that he may, from time to time, question him in regard to the facts of the case in order that it may be properly presented to the jury, and such is the almost universal practice in this State. It appears from the record that the injured man, who would ordinarily have been the prosecuting witness, was unable to be present at the trial. The original complaint was signed by Kellner, and he was an eyewitness of the proceedings in the restaurant. The exclusion of witnesses from the courtroom is within the sound discretion of the trial judge, and we think the custom above referred to is a proper one under ordinary circumstances, and, unless it appears that the rights of the defendant were prejudiced thereby, it is not error to permit the prosecuting witness to be present. The assignment is without merit. Bellamack v. State, 37 Ariz. 344, 294 P. 622.
The third assignment is that the court refused to permit the witness Modina to demonstrate before the jury the position in which Theirs was sitting [50 Ariz. 449] at the time he was shot. Physical demonstrations of this kind are also within the sound discretion of the trial court. Moon v. State,22 Ariz. 418, 198 P. 288, 16 A.L.R. 362. Practically all of those present at the time of the shooting, with the exception of Theirs and his little daughter, testified fully in regard to the position Theirs was in at the time he was shot. While we think it would have been better for the trial court to permit the witness Modina to illustrate and explain his testimony to the jury, as ...