[75 Ariz. 54] Warren H. Lynch, of Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Maurice Barth, Asst. Atty. Gen., F. Lewis Ingraham, County Atty., and William W. Nabours, Deputy County Atty., Yuma, for appellee.
The appellant was convicted on two counts of an information charging him (1) with an assault with a deadly weapon, and (2) with resisting public officers in the discharge of their duties in attempting to place him under arrest pursuant to command of a valid warrant which they then and there had in their possession.
[75 Ariz. 55] From the judgment and sentence pronounced thereon this appeal is being prosecuted.
The facts are that appellant's wife had sworn to a complaint on December 6, 1951, charging him with an aggravated assault upon her. A warrant issued thereon. The warrant was placed in the hands of Deputy Sheriffs Winford B. Kelly and William N. Meador for service the next morning, to wit, on December 7. Investigation disclosed that appellant had fled. Upon being informed by his wife the evening of December 14 that appellant was at home the officers went to serve said warrant.
They were met outside the house by appellant's wife and after some conversation were invited in. Upon entering the small living room dimly lit by a kerosene lamp located in the kitchen, his wife called for appellant, who was in an adjoining bedroom, to 'come on out, Harold, there is a couple of men to see you.' Appellant came to the door with a small baby in his left arm. The right hand was not visible to the officers except as hereinafter stated because it was kept behind a curtain which Mrs. Aldrich had hanging over a portion of the door between the living room and bedroom. Officer Kelly testified appellant held a six-shooter in his right hand which he kept pointed at the officers during the entire time they were in the room. Aldrich and the officers were acquainted with each other. Officer Kelly informed appellant that they had a warrant for him and asked him to come along with them. Appellant replied, 'Don't come any closer; I am not going.' The officers, according to Mrs. Aldrich, were four or five feet from appellant
at the time. They tried to persuade appellant to go with them. Finally he said, 'Now, you can go on and don't come back after me; I am not going.' The officers left and later, to wit, on December 16 they arrested appellant in the 1900 block on Tenth Avenue in Yuma upon a warrant based upon the complaint in the instant case. Defendant then offered no resistance but requested to be taken to his home and let him get his gun and he would shoot it out with them.
On that same day the officers went to appellant's home and after some difficulty procured from Mr. Aldrich the gun with which it is alleged that assault upon them was committed. The gun is a .32 caliber automatic. At the time it was given to the officers by Mrs. Aldrich there were seven loaded shells in the clip and one in the chamber of the gun. Officer Kelly testified that on the night of December 14 when appellant stood in the door between the two rooms of his home with his right hand behind the curtain he heard the safety click off and he reached over and felt the gun through the curtain and determined that he held a gun in his right hand, and as he released the gun and withdrew his hand the curtain swung to one side and he clearly saw the gun.
[75 Ariz. 56] Mrs. Aldrich withdrew her complaint against appellant on December 15 and on that date Officer Kelly filed a complaint against appellant upon which the information in this case was based.
Appellant represented himself at the trial in the superior court but has counsel here who has presented five assignments of error, each of which he claims constitutes grounds for reversal. We think it desirable to set out the assignments in haec verba.
1. The court erred in failing to allow the defendant the right to show prosecution's witness Winford B. Kelly's motives, bias, and interest in the matter.
2. The court erred in openly reprimanding the defendant herein in the presence of the jury concerning his failure to employ counsel and that said reprimand being directed to the defendant himself, adversely affected the jury.
3. The court erred in volunteering the statement during the course of defendant's cross-examination of prosecution's witness William N. Meador, to wit: 'I don't think this would help the jury in any degree. Proceed with another question.'
4. The court erred in sustaining prosecution's general objection to defendant's question to defendant's witness, Melba Aldrich, concerning who encouraged her to have a warrant made out for the defendant's arrest.
5. The court erred in allowing the case to go to the jury on the assault with a deadly weapon count as the State failed to prove that defendant had any present ability to make such an assault, to wit: that the gun was loaded at the time of said alleged assault.
We will consider these assignments according to subject matter. The first and fourth are based upon the ground that the court refused to allow defendant the right to show the motives, bias and interest of the witness Winford B. Kelly. These assignments are based upon the following cross-examination of the witness Kelly and direct examination of Mrs. Aldrich by defendant:
'Q. Could it be that perhaps you had an ulterior motive (in serving this warrant)?'
An objection interposed by Mr. Nabours was sustained. Mr. Aldrich then asked Officer Kelly:
'Q. Did you know my wife prior to speaking to her on this night of December 14, 1951? A. Yes, I did.
'Q. What was the extent of that acquaintance? A. She worked up at the Western Fashion Store while I was employed there.
'Q. Did you ever become a little better acquainted than just a casual acquaintanceship? A. I worked with her, is all.
'Q. Perhaps, Mr. Kelly, you had personal reasons for liking to see me in jail.
[75 Ariz. 57] 'Mr. Nabours: Your Honor, I object to that.
'The Court: Objection ...