[85 Ariz. 174] Mario Cota-Robles and Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., Raul H. Castro, County Atty. and Jack I. Podret, Deputy County Atty., Pima County, Tucson, for appellee.
Defendant Conway Mike Sorrell was charged with the crime of murder in the first degree. He was duly tried and found guilty as charged, the jury fixed his punishment at life imprisonment, and he has perfected his appeal to this court.
There is no substantial dispute as to the events which led up to the alleged crime. The facts briefly stated are as follows: On
July 18, 1957, a young Negro male was shot and killed in front of the apartment [85 Ariz. 175] rented by the defendant. The neighborhood where the homicide took place was known as a violent and rough neighborhood and in a vicinity where many crimes were committed. The defendant testified that on the day of the shooting he returned to his apartment about noon when three persons, decedent and two women, approached his apartment and asked if they could use his room for immoral purposes. The defendant refused to let them into his apartment, and there were words exchanged while the defendant was on the inside of his apartment and the three persons were on the sidewalk in front of his apartment. At no time was there any physical contact between the decedent and the defendant. During the argument the defendant testified that the decedent reached for his hip pocket as he was approaching the door of defendant's apartment, although still on the edge of the sidewalk in front of the doorway, defendant reached for his shotgun, loaded it, kicked open the screen door and fired at decedent which resulted in his death.
Immediately after the killing the defendant went to the Tucson police station and notified the police that he had just shot a man. Defendant freely gave a statement setting forth the above events but claimed that he shot decedent because he thought he had a weapon or knife, although he did not see it, and feared for his life. Defendant told the police officers that he felt decedent had it coming to him; and further 'I wanted to break him of his habits' and 'People down there don't like me. They report me to the police all the time, and I'm going to make a believer out of them. I'll probably wind up going to the penitentiary for life.' Defendant continued to maintain during the course of the trial that he shot decedent in self-defense.
The defendant contends the trial court erred in giving, over the objection of the defendant, the following instruction which was offered by the state:
'You are instructed that before a person may kill in self-defense there must be these four conditions all existing; one, the circumstances must be such as to excite the fears of a reasonable person of great bodily injury or death to himself. Two, the party committing the homicide must have acted under the influence of such fears alone. Three, in resisting an assault, the person claiming self-defense must not use any more force than reasonably appears under the circumstances to be necessary to repel the assailant, and fourth, if the slayer is engaged in mutual combat or was the assailant, he must really and in good faith have endeavored to decline any further struggle before the killing.' (Emphasis supplied.)
It is the position of the defendant that the 'fourth' condition of the above instruction[85 Ariz. 176] was misleading and should not have been given for the reason that there was no evidence of mutual combat.
We have carefully read the testimony and it does not show that the decedent and the defendant were engaged in mutual combat, and the trial court should not have read that portion of the instruction stating the rule of law where mutual combat is involved. It does not, however, constitute reversible error unless the rights of the defendant were prejudiced.
It is well settled in this state that instructions must be considered as a whole, and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which standing alone might be misleading, does not constitute reversible error.
The trial court correctly instructed the jury on the right of the defendant to defend his home, and under certain circumstances, as defined in the instructions, the jury was told that defendant was under no duty to retreat but had the right to protect his person or his home, even to the extent of taking the life of the decedent.
In Taylor v. State,27 Ariz. 228, 232 P. 552, 554, a similar instruction was given by the trial court ...