APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, and Mr. Sam J. Head, County Attorney, for Appellee.
Mr. Henry Rush and Mr. Albert Haynes Mackenzie, for Appellant.
[59 Ariz. 202] ROSS, J.
Wilson Myers was informed against in the superior court of Yavapai county for the crime of manslaughter. He was convicted and given a sentence of from 10 to 12 years in the state penitentiary. He has appealed to this court and, in order properly to consider his grievances, it is necessary that we state what the evidence showed on the trial.
Upon his arraignment and at his trial his attorney was Mr. Edward S. Lyman, who was appointed by the court upon a showing by defendant that he was not able to employ an attorney.Mr. Lyman is an attorney of long standing at the bar of the state and at one time was county attorney of Yavapai county.
The homicide occurred on December 1, 1940, at about 5:00 P.M., on South Montezuma Street, Prescott, west of the court house plaza. The evidence at the trial brought out the following facts: A little while before the homicide the deceased, Ralph J. Grantham, accompanied by his 10-year-old son, engaged in a conversation with one Ella Mae Clinton on the street in Front of Sharkey's bar. Mrs. Clinton and a Mrs. Jessie Ashley at the time were seated in the former's automobile (and with them was one William Baker), and [59 Ariz. 203] had been in said car, which was parked at the curbing, from 2:00 P.M., or for some three hours. It is not necessary to state what Mrs. Clinton and the deceased said to each other further than that deceased admitted to Mrs. Clinton that some time before, while he was drunk, he had said of her that "she had crabs in her eyebrows." Defendant did not hear this conversation but came upon the scene as the deceased was leaving it and was then informed by Mrs. Clinton of what deceased had said. The defendant, saying he would go and talk to the deceased, immediately followed him and the child, who were going north on Montezuma Street on their way home. He overtook them near the St. Michael Hotel, and we let him relate in his own words what happened:
"Well, I just went down the street and was talking to him and I asked him if he had said that, and he said 'Yes, but I was drunk at the time,' and I said 'Are you drunk now?' and he said 'No,' and I said 'Don't you think that is a pretty sorry excuse for talking like that even if you were drunk?' and he said 'What the hell is it to you?' and took a swing at me, and I swung back."
Defendant struck deceased on the chin with his bare fist and the deceased fell backwards, landing on the back of his head and striking the pavement very hard. He said he thought deceased was hurt and that when somebody said "you had better take a mope" he walked away, went around the block and into the Sharkey bar, where he watched the crowd.
William Baker, a witness for the state, was present when Mrs. Clinton told defendant what deceased had said about her, and followed defendant and was within six to eight feet of him and deceased, who were talking together, and testified: "... I looked off and something happened, I don't know, but when I looked back Grantham was laying out in the street." [59 Ariz. 204] This witness did not see deceased raise his hand or strike the defendant, nor did he see defendant strike deceased, according to his story.
Defendant testified he "was mad for those remarks" deceased had made to his lady friend but had no intention of injuring him when he struck him.
May Harbeson and her husband Lyman W. Harbeson were in their automobile, which was parked at the curbing just in front and to the south of where defendant knocked deceased down, looking at them and did not see deceased raise his hand or strike the defendant, but did see defendant strike deceased and the latter fall to the pavement. Mrs. Harbeson testified the deceased stopped directly in front of their car and defendant came down and stopped too; that they talked ...