APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. James A. Walsh, County Attorney, Mr. J. V. McCrory, and Mr. Francis J. Donofrio, Deputies County Attorney, for Appellee.
Mr. Dwight L. Solomon, for Appellant.
Ross, J. McAlister, C. J., and Stanford, J., concur.
[62 Ariz. 2] The appellant Ransom was convicted in the superior court of Maricopa County of the crime of first degree murder and sentenced to suffer death. He has appealed, assigning as grounds therefor five designated errors which he claims the court committed during the trial. We will take up and consider these in the order in which they appear in appellant's brief.
(1) He requested the court to instruct the jury that if it found he killed deceased (Charlie Payne) upon a sudden quarrel or heat of passion, it was permitted to return a verdict of voluntary manslaughter. The court refused to give the instruction and the refusal is assigned as error. If there was any evidence upon [62 Ariz. 3] which to base such an instruction, it should have been given. It is the contention of the state, however, that there is no evidence to support the requested instruction. Parenthetically, appellant and most of the witnesses who testified belonged to the Negro race, and Payne, the deceased man, to the white race. There is, then, no race question involved. Most of the evidence is from the mouths of colored people, and is to the effect that the killing of Payne was in a saloon on West Buckeye Road, number 1319, in Phoenix. It occurred between 8:30 and 10:30 at night, during which time the saloon was full of people, mostly Negroes. Just what took place before the
killing is not disputed, except perhaps by the appellant himself. All the witnesses, while not going into detail, practically agree as to what occurred.
One of the witnesses testified he heard appellant say to the deceased, "Give me back my dollar and a half or my beer," at which time deceased said, "Beg your pardon, kid, you ain't give me no dollar and a half." This witness further said: "Then when I looked around at them, then they were all hugged up and Ransom was cutting him here (indicating.) Then Payne had some empty glasses and a pitcher in his hand, and he sets it down on the beer box. They then got in a clinch, and then they got out of a clinch, and he cuts his throat right there, and then he grabbed his wrist." This statement is corroborated by other witnesses. It also appears appellant had no money with him. Very soon after he arrived in the saloon, he asked John Lewis for twenty-five cents with which to buy beer. This same witness Lewis testified that earlier, on September 4th, the appellant, in a cotton field near Luke Field, in his presence and in the presence of other cotton pickers, said: "I don't like him nohow (meaning Charlie [62 Ariz. 4] Payne); I would like to start some trouble with him to get to kill him."
Because some other witnesses referred in their testimony, in a general way, to trouble between appellant and the deceased, it is contended that the instruction on manslaughter should have been given. A careful examination into the evidence to ascertain what the trouble was between them conclusively and without contradiction shows that if there was any trouble it was provoked by appellant, and maybe for the specific purpose of taking the life of the deceased.
Dr. O. C. West testified as to the wounds on the deceased's body. He says there were seven distinct wounds of an incisive, penetrating character, located in and about the head, chest and shoulders; that the wounds were inflicted by an instrument sharp enough to shave a sliver of bone from the fourth rib and a sliver from the fifth rib, one going in and the other coming out, unless it was a knife with two edges. One of the wounds was on the left shoulder, and another in the right temple. Both of these were superficial. Those about the chest penetrated into the lungs and caused decedent's death. The doctor was asked if he found on the body of deceased any evidence of resistance or defense, and he answered as follows:
"Usually in a body that has as many marks as this man had, I began to look for some marks on his hands and wrists and arms, elbows or somewhere to see if he had made any effort to get away from him. Seven punctures with a sharp instrument like that, there should have been some evidence of this man grabbing at him and trying to stop ...