APPEAL from a judgment of the Superior Court of the County of Pinal. E. W. McFarland, Judge. Judgment affirmed.
Mr. H. G. Richardson, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley and Mr. Charles Bernstein, Assistant Attorneys General, for Respondent.
[53 Ariz. 186] ROSS, C.J.
From a sentence of death by lethal gas, for the crime of murder, Archie Lee Short, alias James Bailey, has appealed.
[53 Ariz. 187] The evidence shows that on the 7th day of June, 1938, appellant was confined in the Arizona State Prison, at Florence; that on that date, in company with four other convicts, who were working at the prison farm, he overpowered the guards and escaped; that in so doing the appellant severely wounded with a knife Joe Lazar, one of the prison guards, and in the escape the appellant and the four other convicts took two revolvers and one Winchester rifle from the guards. Following the escape, a general alarm was sent out and a statewide search was made for the appellant and the other escaped convicts. The next evening (June 8th) appellant was seen upon the streets of Ray, Arizona, by the deceased Jack Hickox, who was then and there a deputy sheriff and who had knowledge of the appellant's and the other convicts' escape, and who was at the time seeking to apprehend the appellant and take him into custody. According to appellant's written confession, while he was in the town of Ray looking for an automobile to escape in, the deceased came onto him and told him he had better drop his gun or he would kill him; that the officer had his gun half way out of the holster and appellant said "Don't pull that out or I will shoot you... There was only one thing for me to do." This version of what happened immediately at and before the shooting is not corroborated by any of the eyewitnesses but the testimony of such witnesses is to the effect that neither deceased
nor appellant spoke a word before the shooting. According to their testimony, before the deceased had an opportunity to fire, or to remove the gun from its holster, appellant shot deceased in the head and killed him. The appellant fired several shots at the officers, who were attempting to assist the deceased in apprehending appellant, but missed his aim. The appellant was later found at an old mill near the town of Ray [53 Ariz. 188] and surrendered to the officers without further struggle.
The appellant did not take the witness stand nor offer any evidence in his own behalf, relying solely upon his written confession, introduced in evidence by the state, and the evidence of eyewitnesses to the homicide to the effect that the appellant shot the deceased while the deceased had his hand on his gun in an effort to remove it from its holster.
Appellant assigns the admission of evidence of the escape on June 7th as error, contending the escape and the circumstances thereof had no connection with the homicide committed on June 8th, but it occurs to us that it had much to do with appellant's action the following day. Without such evidence, there would appear no reason for the homicide, no reason why deceased attempted to arrest appellant and no reason why appellant resisted the deceased officer. In Carter v. State, 18 Ariz. 369, 373, 161 P. 878, 879, where the facts were similar, we said:
"... Prior circumstances of difficulties, under the general rule governing the trial of homicidal cases, are inadmissible, one of the reasons being that the accused does not forfeit his right to defend himself against an assault because he has been guilty of a wrongful act in the past. But the rule has important exceptions, and is not to obtain where faults, which, although not occurring at the precise time of the homicide, but previously, may have been so closely connected with it in time and circumstances as to be fairly regarded as operating to bring it on. A learned author says:
"'In order for evidence of previous quarrels or of particular acts which constitute no part of the res gestae to be admissible against the defendant, it must not be a separate, distinct and independent act, but there must be some link of association, something which draws together the preceding and subsequent [53 Ariz. 189] acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.' Michie Homicide, vol. 1, p. 790."
We think the evidence was highly proper to explain why deceased attempted to arrest appellant and also to show appellant's motive in resisting arrest. Lawrence v. State, 29 Ariz. 247, 240 P. 863. It tended to show that the reason he shot the officer was to make good his escape and prevent his return to the prison.
The question of the sufficiency of the evidence to support a verdict for first degree murder was one for the jury, as was also the question as to whether appellant was justified in shooting the officer in self-defense. Both these questions were passed upon by ...