[78 Ariz. 207] W. Dean Nutting, Holbrook, for appellant.
Ross F. Jones, Atty. Gen., R. Dean Burch, Asst. Atty. Gen., and Melvyn T. Shelley, County Atty., G. Guy Axline, Deputy County Atty., Holbrook, for appellee.
LA PRADE, Justice.
The defendant-appellant, Carl Folk, was convicted of the crime of first degree murder, and sentenced to be executed. From the judgment and sentence he has perfected this appeal.
The state contended that the murder was deliberate and premeditated, and accomplished in the perpetration of or attempt to perpetrate rape, robbery and burglary. The evidence convincingly supported these contentions.
The facts briefly stated, omitting many atrocious circumstances, are as follows:
Mr. and Mrs. R. A. Allen and their infant child were traveling from Pennslyvania toward California in a house trailer which was pulled by a pickup truck. On the night of December 1, 1953 they obtained parking facilities at Goodwater, Navajo County, Arizona, and retired for the night. At approximately eleven o'clock in the evening the defendant, Carl Folk, entered their trailer, bound the Allens hand and foot, and informed them he intended to steal their truck. The defendant drove the truck and trailer approximately one-half mile from Goodwater and parked the vehicles alongside the highway. Folk remained in or around the trailer until daylight (approximately seven hours). It appears that at one time he entered the trailer where Mrs. Allen was bound, carrying a burning torch, and inflicted burns on her body. Mr. Allen testified that his wife screamed at various times and complained to the effect that he was spreading her too far and that he was under the impression that she was being raped. In the morning, around six o'clock, Mr. Allen managed to untie his legs and escaped to the nearby highway where he obtained assistance from two passing trucks. The drivers of these trucks cut the rope binding Mr. Allen's arms and returned with him to the trailer, where he (Allen) obtained a pistol from his truck with which he shot and wounded Folk as he stepped from the trailer. Upon entering the trailer Allen and the truck drivers discovered that Mrs. Allen was dead. Apparently she had been throttled with a bed sheet which was around her neck.
[78 Ariz. 208] The trial court permitted the trial to commence with the testimony of two witnesses who conducted laboratory experiments on the defendant's underclothes. Their testimony was to the effect that these garments had been in contact with the bedrobe of Mrs. Allen. The defendant claims that this order of proof was error since the corpus delicti had been established. The two witnesses were members of the Federal Bureau of Investigation and were required to travel to a distant part of the country at a near date. For their convenience the trial court permitted them to testify first. We find no substantial error here. The order of proof is largely a matter of discretion with the trial court, Turley v. State, 1936, 48 Ariz. 61, 59 P.2d 312, and the evidence was admissible as a circumstance to prove the offense of rape. State v. Guerrero, 1942, 58 Ariz. 421, 120 P.2d 798. No prejudice resulted from this procedure.
The defendant claims error in admitting in evidence a pocketknife and toy pistol found in his possession, on the theory that there was no reason for introducing this evidence other than to prejudice the jury. We fail to agree. The defendant testified that he used the pocketknife to cut the rope used in binding the Allens. As an instrument used in the commission of one of the attending felonies, it was properly admitted. People v. Raucho, 1935, 8 Cal.App.2d 655, 47 P.2d 1108. The toy pistol resembled a dangerous weapon and could have been displayed to create fear in the Allens. That the gun may not have been necessary in the commission of the crime would not detract from its evidentiary value in showing preparation. State v. Terrel, 1932, 175 La. 758, 144 So. 488. Its presence was part of the res gestae and admissible as such. Phillips v. People, 1941, 107 Colo. 250, 110 P.2d 977.
The trial court instructed the jury on murder by torture. The defendant claims this was error because there was no basis in the evidence upon which such an instruction could be given. The only evidence of physical torture was small burns on the decedent's body, the largest about the size of a quarter. These burns, in themselves, could not have caused the decedent to die, or have been a contributing factor in her death. Medical testimony fixed the cause of death as suffocation caused by strangulation. While the infliction of these burns undoubtedly caused the decedent pain such pain does not necessarily constitute murder by torture. People v. Tubby, 1949, 34 Cal.2d 72, 207 P.2d 51. Murder by torture constitutes first degree murder, but differs from torture which is independent of the cause of death. Our statute, Section
43-2902, A.C.A.1939, omits the word 'torture' which, when accompanied by murder, will be first degree murder. It reads:
'All murder * * * which is committed in the perpetration of, or attempt[78 Ariz. 209] to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree * * *.'
In the absence of evidence indicating that the death was caused by torture the instruction was erroneous. Instructions must relate to the evidence. State v. Singleton, 1947, 66 Ariz. 49, 182 P.2d 920. Yet such error is not necessarily prejudicial. In McCann v. State, 1919, 20 Ariz. 489, 182 P. 96, at page 99, we said:
'The giving of instructions, though correct as statements of abstract rules of law, but which find no basis in the evidence, is not to be commended. It is technical, but not reversible, error, unless there ...