V. L. Hash and Virginia Hash, of Phoenix, for appellant.
Fred O. Wilson, Attorney General, Chas. Rogers and Maurice Barth, Assistant Attorneys General, James J. Caretto, Deputy County Attorney for appellee.
Stanford, Justice. La Prade, C. J., and Udall, Phelps and De Concini, JJ., concur.
[70 Ariz. 82] The defendant (appellant) Lloyd Thorp was accused on the 7th day of January, 1949, by the county attorney of Maricopa County, of murder of the second degree alleged to have been committed on the 25th day of December, 1948, the information charging that the defendant "did then and there wilfully, unlawfully and feloniously kill and murder one W. O. Thorp, a human being". W. O. Thorp was the father of Lloyd Thorp. They lived together at 2042 East Jackson Street in Phoenix.
About 7:50 p. m. on Christmas evening, 1948, Tony Silvio, operator of an emergency ambulance service, received a call from the city police department requesting him to go to the premises above mentioned and remove a sick man to the hospital. Upon arriving at the premises Silvio found W. O. Thorp on a bed suffering from bruises and marks about the face and body; found the room in disorder with blood stains on the floor, and upon such findings Silvio refused to remove W. O. Thorp until the police had been notified of the conditions stated. The record shows that the defendant stated that he did not want the police to know anything about it and that they had the means to take care of their father at the hospital. In response to Silvio's call, two deputies from the sheriff's office went to the scene. They searched the house as well as the premises outside. They found nothing outside that would indicate any struggle, but found blood upon the floor of the room in which the father was lying. The injured man was then taken to the hospital accompanied by officers Moore and Stockton. While at the hospital officers found that the clothing of defendant was splattered with blood and that stains of blood were also upon his shoes. They had him to take off his shoes and he was thereupon taken to the sheriff's office and interrogated. W. O. Thorp (the father) died four days later as a result of the injuries received.
Defendant was convicted of manslaughter and sentenced to 5 to 7 years in the state prison. From this conviction and sentence the defendant appeals.
By Assignment of Error No. 1 defendant claims "* * * that the state had wholly failed to establish the corpus delicti of the crime". Assignment No. 2 asserts that there was no evidence "* * * independent of the confession, to prove the commission of any act of violence on the part of defendant toward deceased or that the deceased came to his death as the result of any human agency".
On the subject of corpus delicti, from this court's case of Burrows v. State, 38 Ariz. 99, 297 P. 1029, 1034, we quote: "* * * In a murder case, therefore, the state must prove aliunde the confession, that the person named in the information is dead, and that he has been killed by some [70 Ariz. 83] one. Such evidence, of course, may be either direct or circumstantial, but must be clear and convincing to that effect. * *"
The testimony in this case shows that there were fresh wounds upon the body of deceased; that he had bleeding cuts; the room showed that it had blood upon the floor, and that there had been a struggle.
Erstel B. Stockton, a deputy sheriff called to the scene to investigate, gave the following testimony at the trial:
"Q. And what did you do in connection with making your investigation? A. I asked the group what had taken place. Lloyd Thorp says, 'I don't know.' I asked him at that time who he was, and he told me his name and that that was his father. I asked him where he found his father. He said, 'Out there,' motioned. I says, 'Out where?' He says, 'Out there.' I says, 'You mean out in the yard?' He says, 'Out there,' three different answers was 'Out there.' Well, Bill Moore and myself went out in the yard --"
* * *
"Q. What did you do after that, Mr. Stockton? A. We went out in the yard to see if there was anything out there.
"Q. And how much of the area did you search there? A. We covered the whole yard and also the street.
"Q. Which street? A. In front of the house.
"Q. Did you go beyond Jackson Street? A. The area of the street.
"Q. And did you go east and west on the street? A. East and ...