APPEAL from a judgment of the Superior Court of the County of Cochise. Frank E. Thomas, Judge.
Mr. Joe Conway, Attorney General, Mr. Earl Anderson, Assistant Attorney General, Mr. John F. Ross, County Attorney, Mr. I. B. Tomlinson, Deputy County Attorney, and Mr. Norman S. Herring, Chief Deputy County Attorney, for Appellee.
Mr. James A. Struckmeyer, Mr. Dwight Solomon and Mr. Jacob Morgan, for Appellant.
Stanford, J. Ross, C. J., and LaPrade, J., concur.
[62 Ariz. 146] The county from which this case is brought on appeal is one of the border counties of Arizona, bordering on the Republic of Mexico. The [62 Ariz. 147] City of Douglas, hereinafter mentioned, is on the border line.
On August 8, 1943, a human body was found under a culvert some seventeen miles from Douglas on Highway 80 which passes through Douglas to New Mexico, running in an easterly and northerly direction. The body was later identified as that of Ed Miller. Some days later Lee Albert Smith, who will hereinafter be called the defendant, as he was styled in the superior court trial, was arrested for the crime of murder of Miller. There was also arrested at the same time his son, John L. Smith. The Smiths lived north of Douglas on a ranch, but were not the owners of the ranch, and had before this time employed the deceased, Ed Miller, and paid but little wage, as the evidence shows. So far as the evidence discloses, the Smith family consisted of the defendant, his wife, his son, and a daughter of his wife by another marriage, and then a child some four or five years of age who was the issue of the marriage of this defendant and his wife. John L. Smith was not the son of the Mrs. Smith with whom the defendant was then living.
Ed Miller told members of the Smith family that he was going to Douglas to live. As to the exact date we are not certain, but it was very close to the date of the killing. The evidence in behalf of the state is about as follows:
On the morning of August 7, 1943, defendant and his son, John L. Smith, left their home in a two seated Ford automobile for Douglas, and found Ed Miller in the edge of Douglas walking to the business center. They picked him up and the evidence disclosed that he was taken out on Highway 80 in the direction of New Mexico. The son, John L. Smith, was driving the car and the father was sitting on the back seat. Miller was sitting on the front seat with the son, and when the car reached a distance of eight or nine miles on [62 Ariz. 148] Highway 80, the defendant struck the deceased many times with a claw hammer. The defendant thereupon told the son to drive as fast as the car would go and when they reached a certain culvert, which the evidence shows was approximately seventeen miles from Douglas, the car was stopped upon the culvert, the body was thrown over the end of the culvert, and the defendant cut the throat of deceased and dragged him under the culvert, got back into the car and returned to their home. In the meantime, however, they met some men working on the highway as they were going out, and again met them as they returned.
When defendant and his son were arrested on the 14th day of August, they were on their ranch behind a barn washing the car in question, and had mud in the bottom of the car and over tools.
On August 16, 1943, John L. Smith gave a statement to the county attorney, which was taken down in shorthand and transcribed in a typewritten form, the statement consisting of five typewritten pages. This statement was later introduced as evidence in the trial.
The record shows that on August 18th a complaint and warrant of arrest were issued charging this defendant with murder, and on the 22nd day of August, the defendant was taken before the Justice of the Peace for a preliminary hearing, and when the complaint was read, he stated, "I killed Ed Miller." Thereupon the Justice of the Peace bound the defendant over to the superior court, and, in the superior court he thereafter entered a plea of not guilty, after, however, he had had counsel appointed by the court to defend him. Before that time, however, and after he had read the statement of his son, which had been submitted to him while he was in jail, the defendant wrote out, in his own handwriting, a confession of the killing of deceased, Ed Miller. There was no date stated on the paper.
[62 Ariz. 149] A verdict of guilty of murder of the first degree was returned in this case by the jury, and under the Arizona law, the jury having the right to set the penalty at life imprisonment or death, the death penalty was fixed.
The first assignment of error submitted by defendant is as follows:
"The court committed prejudicial error in allowing various witnesses to indulge in conjecture and hearsay and to testify as to conclusions arrived at by personal investigation based on hearsay, for the reason that prejudicial evidence was thereby brought to the jury's consideration; more particularly, by allowing all of the witnesses to testify to incompetent but prejudicial facts."
This assignment goes to the evidence in the case, and as we read the opening brief of the defendant we see the contention raised by one of the defendant's outstanding
examples whereby he quotes the evidence of an officer at the trial of his case. That officer was Chesley Miller, who was a deputy sheriff. The evidence quoted in defendant's opening brief given at the trial was as follows:
"A. When I arrived at Hot Springs (located in New Mexico) I found that Mr. Miller and his son had been in Hot Springs themselves on a Tuesday morning following --
"Q. Do you mean Miller and his son? A. I mean Mr. Smith, pardon me, had been in Hot Springs both Tuesday and Wednesday. They had been to the house of Edward D. Miller -- there was a tent house belonging to the deceased -- and had broken in and entered both buildings.
"Q. Did you find any paper that would indicate the name of the owner there? A. I did.
"Q. What were they? A. I picked up an old letter or two that is down in the Sheriff's office, I believe, where this woman showed me this green V-8 car was parked. She told me they carried bundles out of one house and a cardboard box out of the other."
[62 Ariz. 150] Counsel for defendant on this appeal in relation to such testimony raises this contention:
"The erroneous admission of this evidence was evidently realized by the court, who once did direct the witness, 'Do not testify as to what any one told you, Mr. Miller.'
"Despite the interposed objection of the court, however, no attempt was made to warn the jury or to instruct them to disregard the testimony, and, in effect, the jury could have been led to believe from the conduct of the court, the prosecuting attorney, and of the counsel for defendant, that all the previous testimony was material, relevant, competent, admissible and true."
During the testimony taken of the deputy sheriff, Mr. Miller, we find that several times counsel for defendant objected and the objection was sustained. It is true that in the evidence quoted, and in many other places, there were no objections. Defendant, through his counsel on this appeal, admits that the counsel in the trial court did not object to this evidence, as it can be seen from their remarks above quoted. This court has several times ruled that unless an objection is made that it is not error to permit hearsay evidence to be brought into the ...