[89 Ariz. 105] John A. McGuire, Yuma, for appellant.
Wade Church, Atty. Gen., Stirley Newell, Asst. Atty. Gen., Bill Helm, Yuma County Atty., Yuma, for appellee.
The defendant, Lewis H. Hudson, was informed against and tried for the unlawful killing, on or about August 29, 1957, of one James McFadden. He was convicted of manslaughter and sentenced to serve from seven years and nine months to ten years in the state prison. He now appeals from this judgment.
This is the defendant's second appeal from a judgment on these facts. Our decision reversing the first conviction of second degree murder because of 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 reported in 85 Ariz. 77, 331 P.2d 1092, 1093. Included therein is the following statement which substantially conforms to the evidence adduced at the second trial: 'It 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 Brooks testified that the defendant 'jumped' deceased; that he struck him with a bottle, knocking him to his knees; and that defendant then '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. 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. Defendant also stated that the deceased [89 Ariz. 106] had struck his head 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 the Brookses 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 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 defendant has submitted numerous assignments of error. We will only consider those which merit our consideration. The defendant contends that his alleged confession was given involuntarily and that it was error to admit it into evidence. We said in State v. Pulliam, 87 Ariz. 216, 349 P.2d 781, 783:
'* * * Under the law in this state the admissibility of a confession depends
on whether it is freely and voluntarily made. (Citing cases.) If obtained through force, duress, or promise of immunity, it is inadmissible. Wagner v. State, 43 Ariz. 560, 33 P.2d 602. If it appears to the reasonable satisfaction of the trial court from the preliminary inquiry that the confession was not so obtained, it may admit the confession into evidence. Davis v. State, 41 Ariz. 12, 15 P.2d 242. However, if it appears to the reasonable satisfaction of the trial court that the confession was not freely given it should not at the trial before the jury permit the confession to be introduced into evidence.' (Citing cases.)
We further said in that case that:
'* * * Whenever during the course of a criminal trial a confession is offered in evidence the burden is on the prosecution to lay a prima facie foundation for its introduction by preliminary proof showing that it was freely and voluntarily made. Before the confession is received the defendant if he requests it, in the absence of the jury, must be accorded the opportunity to introduce evidence to overcome the prima facie showing.'
The court then rules upon its admissibility for submission to the jury. If the court rules that it is admissible he then submits the question to the jury on proper instructions both as to its voluntary character and as to its truth. This is the proper procedure that should ordinarily be followed in dealing with confessions in the trial court. In the instant case, however, the defendant did not ask to be accorded the opportunity to overcome the prosecution's showing. The defendant permitted the confession to go into evidence and then [89 Ariz. 107] proceeded in his case to show that the same was involuntary.
The facts and circumstances surrounding the taking of the confession complained of in the present action are as follows: The defendant was arrested on August 30, 1957, in Willcox and returned to Yuma the following day. He was questioned on his return and maintained that he was innocent of the crime. The defendant was, on a number of occasions, questioned after that up and until he made a confession on September 3, 1957. There was testimony that defendant had been advised of his legal rights in making statements. At various questioning periods he was confronted with the men he said did the killing and also some of the victim's family. At the trial there was testimony concerning the circumstances surrounding these questioning periods and also what was said therein. After the confession was made and on September 4, 1957, the defendant was taken before a magistrate where he waived preliminary hearing.
We believe that the State in its preliminary proof met the burden necessary to justify the court in ruling that the confession was prima facie voluntary. Though under the usual procedure it would have been better for the trial court to dismiss the jury before hearing the preliminary proof. As above stated, we do not believe that under the circumstances of this case the trial court abused its discretion in admitting the written confession into evidence. The question of whether the confession was voluntarily made was submitted by the trial court to the jury on an instruction which would ordinarily be adequate. However we are of the view that under the circumstances of this particular case where defendant was questioned many times before making his confession, and ...