ROBERT G. BURGUNDER, Appellant,
THE STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Maricopa.
Arthur T. LaPrade, Judge. Judgment affirmed.
Mr. C. T. McKinney, of Phoenix, Arizona, and Mr. R. M. Burgunder, of Seattle, Washington, for Appellant.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Mr. Richard F. Harless, County Attorney, Mr. Leslie C. Hardy and Mr. Darrell Parker, Assistant County Attorneys, for Respondent.
[55 Ariz. 414] ROSS, C.J.
Robert G. Burgunder was tried, convicted and sentenced to death upon a charge of murdering E. B. (Jack) Peterson on April 29, 1939, and he has appealed contending that his trial was not fair and impartial nor in accordance with law.
The trial lasted from June 26 to July 18, 1939. The transcript of the testimony covers 3,213 typewritten pages. As to who committed the homicide or how or why it was committed, there is no conflict. There may be variance in the details of the story but if so they come from the defendant's and not the state's evidence. There were many disputes and controversies in the course of the trial involving questions of procedure and law but the all-important question, and the only real one on the merits of the case, was whether defendant at the time he took Peterson's life was sane or insane. That we may have the picture before us in the consideration of defendant's complaints, we here give a condensed synopsis of the salient features of the evidence.
The defendant at the time was 22 years of age and a student at the Arizona State Teachers College at [55 Ariz. 415] Tempe, Arizona. His father resided in Seattle, Washington, and his mother at Alhambra, California. He had a weakness for gambling at poker, pin ball, and especially slot machines, and it appears by reason thereof his finances were very low just before the occurrence for which he was tried. On Monday, April 24th, he moved from the college dormitory to a hotel in the town of Tempe. He attended no classes thereafter except perhaps Tuesday. On Friday evening, April 28th, he sent a fictitious telegram from Phoenix to himself at Tempe stating:
"Father dying stop Could not reach you by phone stop leaving immediately by car for Seattle stop Follow by train or plane stop We cannot wait One Hundred dollars deposited your name in California Bank, Pasadena Office Pay school fees leave baggage Love Jack and Mother."
On April 29th this fictitious paper was delivered by Western Union to defendant at Tempe, and he used it to induce the college to cash his worthless check for $75 and to secure an endorser of a $45 worthless check, which he cashed at a Tempe bank. After obtaining this cash, he returned to Phoenix, arriving there about 11 o'clock in the morning. The first
thing he did was to buy the.25 caliber Colt Automatic pistol and some cartridges from the United Loan and Jewelry Company at 331 East Washington Street, later used to kill Peterson. He went to a show for a short time, then, having loaded the pistol, to the intersection of Seventh and Van Buren Streets, Phoenix, where the through east-and-west travel is very heavy, and "stayed there for about two hours" hoping, as he said, "to get a car going east with a foreign license plate, a sedan with not more than one or two persons in it." He saw one car with the stated qualifications but the green signal was on, so of course it did not stop. He then decided he would try to get a car "some other [55 Ariz. 416] way." He went to Ed Rudolph's, a dealer in automobiles, and found a 1929 Ford which he bought for $35. This was between 2 and 3 o'clock in the afternoon. He told Rudolph's his name was Bob Lesser and that he lived in Los Angeles. He went to a store and bought a cheap white shirt and asked them not to fold the shirt and to use plenty of wrapping paper and tie with a heavy cord. These instructions were followed. He then drove the Ford east on Washington Street for some distance, stopped and removed the license plates. He drove thence to Thomas Road and 24th Street and parked the car off the road in some brush. He took the license plates and put them in the package containing the shirt and tied the package up again. He disconnected the spark plug, deflated one of the tires and threw the keys of the car in a near-by canal. He caught a bus into Phoenix and when he arrived stationed himself at First and Van Buren Streets, across from the Consolidated Motors Company, for about an hour or until around 6 o'clock, and during that time "saw," as he said, "another car pass... with the green light...."
He then visited the Consolidated Motors Company and told the sales manager he wanted to buy a Ford because his mother got sick from the sidesway of the Pontiac he had. Said he wanted to buy the Ford that night as he was leaving for California early next morning. He selected a four-door Ford sedan. The deceased Peterson, a salesman, and defendant drove this car around the streets of Phoenix for a short time and returned to the Consolidated Motors Company and picked up Ellis Koury, who was also a salesman, and the three of them left to go to Tempe to determine the trade-in value of defendant's car, which he claimed to have parked in a garage near that place. Peterson was at the wheel, Koury on his right and defendant in the back seat. He caused them to go through Tempe [55 Ariz. 417] and south thereof for a distance of four or five miles onto the desert, about a mile and a half south of the Indian village of Guadalupe. Shortly after passing through Tempe, defendant drew his pistol and announced to Peterson and Koury that it was "a stickup" and directed Peterson, who was still driving, to turn to the right and south. He held his pistol on them until they arrived at the spot above named. He ordered Peterson and Koury to alight from the automobile and, holding the pistol on them, directed Koury to take Peterson's belt and necktie and tie his hands behind him and his ankles together, which was done. He then made Koury tie his own feet together and, this having been done, he first shot Koury, who was on the ground, twice in the head and then turned to Peterson, who was straining to break his bonds, and shot him three times. He robbed them and dragged their bodies some seventy feet from where they lay to a sand wash, got in the Ford car and drove away. He later said he made up his mind to kill Peterson and Koury on the way to the desert "because it was his best chance to get away." When he was told the penalty for stealing a car could not be so heavy, he said: "Don't forget those hot checks," and that he was out on parole from the state of Washington under a thirteen-year sentence.
After the killings, and a short distance east of Mesa, he removed the license plates from the car and put on it those he had taken from the Rudolph car, and fled from Arizona to Johnson City, Tennessee. In the meantime, on May 5th, the bodies of Peterson and Koury were found and their tragic fate was publicized throughout the United States by the newspapers and sheriff's office of Maricopa county. On Sunday, May 7th, defendant read in the local Tennessee papers of the finding of the bodies and, as he was returning from church and Sunday school to the home of family [55 Ariz. 418] with whom he had secured lodging, he was arrested by Earl Sell, high sheriff of Washington county, Tennessee. He had in his possession the Ford sedan belonging to the Consolidated Motors Company or to Peterson, the pistol he had bought in Phoenix on April 28th, a belt of Koury's, and other things that identified
him as connected with the homicides. After his apprehension, and before his trial, his story given on several occasions and to several persons was, in the main, as we have detailed above. At his trial he deviated therefrom in the respect that he insisted that he had a confederate who, he said, did the actual shooting. He refused to state who his confederate was, or to describe him, or to give any clue whatever as to his identity.
After the state closed its case, Mr. C. T. McKinney, attorney for defendant, stated the grounds upon which the defendant would rely. He told the jury:
"... the defendant will produce evidence here before you in a detailed history of his life from early boyhood, throughout his life in the State of Washington, throughout a period of time prior to the time when he got in trouble, and was incarcerated in a reformatory in the State of Washington, a detailed description of his life afterwards, the effect of his life in the reformatory upon him afterwards, the effect of the life there, and the incident that happened afterwards upon his mental condition at the time of the acts charged in this case...."
In support of this defense, the defendant's father and mother testified in some detail about defendant's actions, his moods, periods of depression and elation; told of his holding up a drug store in Seattle, Washington, and shooting at an officer who attempted to arrest him; about his being sent to a reformatory, of his associations therein, of his experiences and observations in the office of his father, a public prosecutor, [55 Ariz. 419] how these things had affected his attitude towards society, and of his appetite for gambling.
Defendant as a witness in his own behalf outlines his defense as follows:
"My desire for going on the stand from the first was prompted by one reason and has been added to another. I, at no time desired to go on the stand for the purpose of saving my life. That may seem like a strange statement, but when I left, left Arizona, I had no particular desire to continue to live. I was making an effort, I was trying something which I did not think would succeed. There were only two things before me now and that is a plea of insanity, either life imprisonment or the death penalty, and I have no desire for the life imprisonment. I had two years in the reformatory. That was more than I could stand very well. I have no desire to continue life in confinement so the story I am telling you gentlemen is not a story designed to create pity or sympathy. It is a story which happens to be the truth and which I desire to tell for those reasons. And I am not asking you, and I would appreciate it if you would disregard Mr. McKinney's asking you to save my life because I am young, because I have any good points, whatever they may be. As a lawyer that is his duty. My mother will probably be on the stand and because she loves me, knows me for what good points I do have, she may also ask that my life be spared. And I will ask you to disregard this also because if the story which I am about to relate to you is a lie, then there is no reason whatsoever that I should not be given the death penalty. And if the story which I am about to relate to you is the truth, then I am concealing a man who, for whatever his reason, is a murderer and for that reason also I should probably be given the death penalty. There is only one reason I can see why I should continue to live and that is if at that time I was insane, and I am not saying that I was insane for I do not know...."
Thirty-two errors are assigned, or attempted to be assigned. Some of them are so completely without [55 Ariz. 420] merit we will not consume time or space to state or discuss them. Many of them do not conform with the court's rules but when they present a question of a possible violation of defendant's rights we will disregard this defect.
Defendant's first assignment makes the point that he was not legally committed and that therefore his motion to set aside the information should have been granted. The record on this motion shows that defendant was taken before the committing magistrate of East Phoenix Precinct by the sheriff on May 15th, and that he was represented in the proceeding then had by his attorney C. T. McKinney; that he was advised of the charge against him and that his attorney waived the reading of the complaint; that at such time the preliminary hearing was set for May 22d; that on said date defendant was present and represented by the same attorney, C. ...