[85 Ariz. 78] Robert Morrison, Atty. Gen., L. Alton Riggs, Special Asst. Atty. Gen., and Bill Helm, Yuma, for appellee.
Melvin J. Owens, Phoenix, for appellant.
The defendant, Lewis Henry Hudson, was informed against and tried for the unlawful killing, on or about August 29, 1957, of one James McFadden. He was convicted of second degree murder and sentenced to serve from fifteen to twenty-five years in the state prison, his motion for new trial was denied, and this appeal follows.
In appears from the evidence that the defendant left Los Angeles by freight train on August 27, 1957; and the following day, in the train yard at Colton, California, he met James McFadden, hereinafter referred to as the deceased. Thereafter, Chester Brooks and his father, William Brooks, joined the group, and after much drinking as hereinafter related, the group boarded a freight train and arrived in Yuma, Arizona, on the morning of August 29th. That night the group boarded another freight train headed east and the group was apparently congenial until the freight train was ten or fifteen miles out of Yuma. At this point the stories differ. William and Chester Brooks testified that the defendant jumped deceased with no provocation; that he used a knife on deceased; that he struck him with a bottle, knocking him to his knees; and that defendant then [85 Ariz. 79] 'stomped' him in the face and throat, hit him with his fists and struck him again with a wine bottle, after which he moved no more. Chester Brooks testified that deceased did not strike the defendant at all. Both men were of approximately the same height, weight and age.
In defendant's statement made to the sheriff of Yuma County on September 3, 1957, which was introduced in evidence by the state, the defendant stated that 'we were all wined up', and that he and the deceased had a 'heck of an argument', that deceased had 'got [him] a good lick on the throat', and that he had shown one of the officers a blue spot on his leg. He
also stated that the deceased had struck his head on a large timber on the floor of the car when he 'took him by the foot and slung him over there'. The medical testimony showed that deceased probably had died instantly when a skull fracture pushed a section of bone into the brain tissue.
The two Brookses and defendant sat around drinking the remainder of the wine and then, deciding that the deceased must be dead, defendant got William and Chester Brooks to help him throw the body over the side of the car because, as he stated, 'As drunk as I was I couldn't possibly pick him up'. The Brookses testified that they were now very much afraid of the defendant, too much so to leave the train or to refuse to obey him. The body was found about fifty-one miles east of Yuma. The defendant was riding in the same car when he was apprehended at Willcox several hours later.
The trial court instructed the jury on second degree murder and manslaughter, and submitted proper verdicts for each offense. The defendant contends that the failure of the trial court to instruct the jury on the effect of voluntary intoxication on the intent of the defendant to commit murder is reversible error where there is sufficient evidence of such intoxication introduced at the trial.
At the conclusion of the evidence counsel for defendant made the following request of the court:
Mr. Garcia: 'We rest, your Honor. Before we proceed with the argument I would like to make two requests, of course, in the absence of the jury, but I can cite them in here under the statute by just giving the numbers.'
The Court: 'Are your requests written up?'
Mr. Garcia: 'I didn't have time. The book was here all night. It is in accordance with the statute only on the manslaughter question and the intoxication phase. I know you have given these instructions before.'
The court then excused the jury, and counsel for defendant again stated:
[85 Ariz. 80] Mr. Garcia: 'May the reporter take these as having been requested, such an ...