Appeal from Superior Court, Coconino County; Dudley W. Windes, Judge.
Henry Singleton was convicted of second-degree murder and of manslaughter, and he appeals.
Judgments of conviction reversed and cause remanded for a new trial.
H. K. Mangum, of Flagstaff, and Dodd L. Greer, of Holbrook, for appellant.
John L. Sullivan, Atty. Gen., Perry M. Ling and Gen. William P. Mahoney, Jr., Asst. Attys. Gen., and William W. Stevenson, Co. Atty., of Flagstaff, for appellee.
Udall, Justice. Stanford, C. J., and La Prade, J., concur.
[66 Ariz. 52] The defendant (appellant) was charged by information filed in the Superior Court of Coconino County with three counts of murder and one count of assault with intent to commit murder. All alleged offenses occurred within a brief space of time at approximately 2 A.M. on May 16, 1946, in front of defendant's home in Bellemont, Arizona. A five day jury trial (September [66 Ariz. 53] 3-7, 1946) resulted in the conviction of defendant on count I for murder in the second degree of LeRoy Blevins, and on count III for the manslaughter of Henry Blevins. Verdicts of acquittal were rendered on count II charging the murder of Ernest Blevins, and on count IV charging an assault with intent to murder Oscar Blevins. From the judgments of conviction wherein defendant was sentenced to serve 12 to 15 years on the second degree murder charge and, running concurrently, 3 to 6 years on the manslaughter charge, and from the court's denial of his motions for a new trial and in arrest of judgment, this appeal was taken.
The facts developed at the trial were these: Defendant Henry Singleton was a resident of Bellemont, Arizona, a settlement some twelve miles west of Flagstaff and adjacent to the Navajo Ordnance Depot. For the past four years and at this time he was employed at that Depot as a guard by the United States Government. His hours of work on the day in question were from 3:30 P.M. to 11:30 P.M.
His home consisted of a living room, two bedrooms and a kitchen together with a small cabin located approximately thirty feet south of the main residence. There were but two usable entrances or doorways into the home, the principle one being a north door leading to the bedroom where defendant slept, and, on the east, a kitchen entrance consisting of an outer screen door, a small entry way and a wooden door into the kitchen proper. The occupants of the home on the night in question were the defendant, his wife, a twelve year old adopted daughter, Leonard Gore (defendant's grown stepson), and Ella Blevins (the estranged wife of Ernest Blevins who had lived with the Singletons since March 1, 1946).
On the evening of May 15, 1946, Ernest Blevins together with his brothers Oscar Blevins and Henry Blevins, a cousin, LeRoy Blevins, and the latter's friend, one Harvey Smith, were in attendance at a dance at the Bellemont Inn, a tavern on U. S. Highway 66, some 500 to 600 feet north of defendant's home. These men, but for the exceptions hereafter noted, spent the evening at said tavern and an adjacent cabin dancing, drinking and talking with friends until closing time at about 1:00 A.M. Thereupon the five of them accompanied by one Dorothy Etheridge drove west on Highway 66 some three and one-half miles to Jensen's Barbecue stand where sandwiches and coffee were obtained and consumed. They then returned to Bellemont where they turned off the highway and proceeded to defendant's home, stopping their car within 6 to 8 feet of the north bedroom door. No reasonable explanation was given by any of the car's occupants as to the purpose of this visit to defendant's home in the dead of night. But judging by their two verdicts of acquittal, it seems the jury believed this nocturnal excursion to be other than a legitimate and peaceful mission.
[66 Ariz. 54] Defendant's wife and other occupants of the Singleton home testified that near the hour of 10:00 P.M. Ernest Blevins had appeared at the north living room door where he made inquiry of Mrs. Singleton as to whether everyone was in bed, and to her affirmative reply answered, "That's a God-damn lie." He made no other disturbance at that time and departed. About one hour later Ernest appeared again, this time at the kitchen door and accompanied by another man identified by a neighbor lady as LeRoy Blevins. When Mrs. Singleton refused to let him in, he made considerable disturbance, banging and shaking the latched kitchen screen door, and becoming quite abusive towards her. He told her that what he wanted to do was "to get those two sons-of-bitches together and kill them." His parting statement was "very well, I know you won't open the door, but I will be back with authority to come in." Both men appeared to have been
drinking and seemed in a highly belligerent mood. When defendant, with his neighbor and fellow guard, Mr. Richards, returned home from work about midnight, his wife highly upset, related to him in detail the happenings of the evening. He attempted to quiet her fears and "told her to go on to bed, they was just drunk, it was drunk talk" whereupon they all retired. Upon the facts thus far there is virtually no disagreement except that the State offered in rebuttal the negative testimony of others from the Bellemont Inn Tavern to the effect that they did not remember any of the Blevins men leaving the dance at any time during the evening.
As to the homicides, it is the State's version that when the Blevins' car stopped in front of defendant's home, Ernest Blevins started to get out of the left rear door when, without warning or provocation, the defendant fired at him from the north bedroom door and, thereafter, in rapid succession fired four or five more shots hitting the deceased persons and Oscar Blevins as quickly as they could climb out of the car. The state contends that Ernest was the first and Oscar the last man shot, while the defense contends the reverse to be true.
The defendant's story is, however, that he was awakened at approximately 2 A.M. by a disturbance at the kitchen door which sounded like the noise of a screen being torn. Without rousing the other members of the family or stopping to dress, he picked up his loaded shot gun and opened the north door to his bedroom at which instant he was confronted immediately by two men standing in the bright moonlight. One, standing directly in front of the car he recognized as Oscar Blevins while the identity of the other, standing in back of the car, he was unable to distinguish. In response to defendant's query "what is this, what are you trying to do?" both men started toward him saying that they were coming in. He told Oscar to stop, and when he continued to advance and made a movement towards his hip, defendant fired, first at Oscar and then at the other man who was [66 Ariz. 55] coming towards him, and who then turned and disappeared behind the house. Defendant testifies that thereupon: "I kind of stepped out on the front of my door, and three men come from behind the house, and a woman, and just as the men got right out between the cars they said, 'There's the damn son-of-bitch, come on.' I told them to stop, and they didn't, and I fired another shot. And there was one guy run off towards the saloon, and I don't know where the other went, and Ernie hesitated, then started on, kept coming. I told him not take no more steps, he taken another, and I fired. He throws up his hands and wheeled around and fell."
After the shooting was over, it having all occurred in a few short minutes, the girl, Dorothy Etheridge, was told to get away from there. She went on foot to the nearby Inn and telephoned the police. Defendant dressed, went to the home of his neighbor Mr. Richards and told him what had happened, stepped out for a moment to telephone the sheriff's office at Flagstaff, and then came back to the Richards' home to await the arrival of the officers to whom he peaceably surrendered some thirty minutes later. In the meantime, the wounded Oscar Blevins had been driven to the hospital in the Blevins car by Harvey Smith.
When Sheriff Francis and Deputy Walker arrived upon the scene they found Henry Blevins lying wounded in the front seat of Singleton's Ford coupe which was parked in the alley to the east of his house. Ernest Blevins, also wounded was found lying on the ground some twenty-one feet northeast of the bedroom door from which the shots were fired. Ambulances were called and the mortally wounded men were removed to the Flagstaff hospital where both died between 7 A.M. and 8 A.M. that same morning and were, before their deaths, apparently unable to give their versions of the shooting. At the coming of daylight, the body of LeRoy Blevins was found dead on the north side of a building some 170 feet northeast of the Singleton house. The officers further discovered that the screen had been partially ripped from defendant's kitchen door, and the door to the small cabin south of the main house had been broken or kicked in. A nearly empty quart bottle of whiskey and an empty beer bottle were found near where the Blevins' car had been parked, and later a full quart of whiskey was found in the car itself. Doctor
Kitteridge testified that Henry Blevins died from a gunshot wound of the abdomen, the four shot having entered from the right side and slightly toward the back; and that LeRoy Blevins died from a gunshot wound of the chest, the shot having entered from the back.
There was no evidence of any previous trouble between defendant and the Blevins men, and, while he knew both Oscar and Ernest, it appears that he was unacquainted with either Henry or LeRoy both of whom he was convicted of killing. The gun had been purchased by defendant locally [66 Ariz. 56] as a hunting weapon a month before the homicides. No weapons other than one small pocket knife were found on any of the Blevins party.
The defendant presents, in all, eight assignments of error with a corresponding number of propositions of law. Assignments I and VI logically can be considered together. The first assignment states:
"The Court erred in submitting to the jury the issue of whether Defendant was guilty of murder in any degree under any count in the information for the reason that there was no evidence to support the Court's charge."
And assignment VI states, in part, that:
"The Court erred in denying Defendant's motion for a new trial and in arrest of judgment for the -- reason that the proof adduced at the trial disclosed but a single transaction."
In this regard it is defendant's theory that the record presents no evidence of malice, premeditation or deliberation, or facts or circumstances from which these could be implied, as to any of the four offenses charged by the information. And, therefore, nothing to justify the submission of murder verdicts or the giving of any instructions to the jury on the issue of murder. Further, that as to count I of the information (charging the murder of LeRoy), there is but scant evidence to connect him with this homicide and no evidence suggesting that he knew LeRoy to be among those whom he shot. And, following therefrom, there was no evidence to sustain the conviction of defendant for murder in the second degree of LeRoy Blevins. Finally, that the jury reached an untenable result in finding defendant not guilty on two counts and guilty on one count of murder in the second degree and one count of manslaughter for the reason, defendant maintains, that this is but one crime, one transaction, and, therefore, if the jury found malice to be absent in certain of the killings, it must be absent from them all.
As Chief Justice Lockwood so well stated in Macias v. State, 36 Ariz. 140, 283 P. 711, 716, it is true that: "* * * instructions must be based on some theory of the case which may be found in the evidence, and, when not so predicated, they should not be given, as their tendency would be to mislead the jury." It is further correct that murder in the second degree must be "with malice aforethought" while murder in the first degree must, in addition, be a "willful, deliberate and premeditated killing, or * * * committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem * * *." Secs. 43-2901, 43-2902, A.C.A. 1939; Moore v. State, 65 Ariz. 70, 174 P.2d 282. Finally, proof of a homicide with a deadly weapon does not itself compel the presumption of premeditation or deliberation so as to make the offense first [66 Ariz. 57] degree murder. 40 C.J.S., Homicide, § 192. But by statute in Arizona, once the homicide by defendant has been proved in a murder trial, it is presumed that he is guilty of murder to the extent that he has the burden of proving mitigating circumstances so long as the State's evidence does not tend to show to the contrary. Sec. 44-1814; Miranda v. State, 42 Ariz. 358, 26 P.2d 241; Viliborghi v. State, 45 Ariz. 275, 43 P.2d 210; Harris v. State, 46 Ariz. 121, 46 P.2d 1082; State v. Ponce, 59 Ariz. 158, 124 P.2d 543. See also State v. Grayson, 126 Or. 560, 270 P. 404. Premeditation and deliberation may be shown by facts and circumstances surrounding the homicide, (Moore v. State, supra; Sullivan v. State, 47 Ariz. 224, 55 P.2d 312; Harris v. State, supra; Miranda v. State, supra; People v. Wells, 40 Cal.2d 610, 76 P.2d 493; People v. Buenaflore, 40 Cal.App.2d 713, 105 P.2d 621) and malice in law does not require
actual malice toward the unintended victim, Mayweather v. State, 29 Ariz. 460, 242 P. 864. Taking these rules of law together with the testimony of two of its witnesses, Oscar Blevins and Dorothy Etheridge, the position of the wounds inflicted, and the surrounding facts and circumstances of the case, it can hardly be said that the State's evidence necessarily points in a direction opposite than that of murder. Therefore, on this score at least, the submission to the jury of murder verdicts together with instructions to the jury on the crime of murder were justified.
As to LeRoy's death, there is sufficient testimonial and circumstantial evidence connecting defendant therewith to justify defendant's conviction of murder in the second degree on this count. Defendant testified that he shot a man who afterwards ran north. The next morning LeRoy was found dead some 170 feet northeast of defendant's house having died from wounds resulting from a shotgun charge. It is established that LeRoy as driver of the Blevins' car was at the scene at the time of the shooting; Oscar testified that he saw him shot; defendant never denied that ...