APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred L. Ingraham, Judge. Judgment affirmed.
Mr. John W. Ray and Mr. Isaac Barth, for Appellant.
Mr. K. Berry Peterson, Attorney General, and Mr. Lloyd J. Andrews and Mr. Arthur T. La Prade, Assistant Attorneys General, for the State.
[37 Ariz. 346] ROSS, J.
Defendant, Pete Bellamack, was informed against for the crime of assault with intent to commit murder, by means of a deadly weapon. From a verdict of guilty and sentence of conviction, he has appealed.
Briefly the facts are: Defendant and his wife, Adele Bellamack, had become estranged and were living apart, the latter with her sister Beatrice Garcia, in Phoenix, Arizona. On the evening of January 26, 1929, at about seven o'clock, defendant went to the Garcia residence for the purpose, as he stated, of effecting a reconciliation, which was refused by his wife. Whereupon, according to the testimony of the prosecution's witnesses, defendant threatened to kill her, and immediately thereafter did shoot her through the right lung. The defendant then shot himself with suicidal intent. Both parties recovered. The defendant testified that he did not intend to shoot his wife, but that in trying to kill himself the gun accidentally discharged, the bullet striking her. In view of the verdict returned, the jury evidently did not believe the shot was accidental.
Defendant first complains that the judge who tried him was without right, power or authority to do so, because the case had not been properly or legally assigned to him. The judge who presided over the trial was Honorable FRED L. INGRAHAM, Judge of the superior court of Yuma county. At the time of the trial there were three judges of the superior court of Maricopa county, presiding, respectively, in division Nos. 1, 2 and 3. On March 11, 1929, in division No. 1, before Honorable M. T. PHELPS, Presiding Judge of that division, defendant was arraigned, [37 Ariz. 347] entered his plea of not guilty, and the trial was set down for April 26th. On April 25th Honorable JOSEPH S. JENCKES, Presiding Judge of division No. 2, assigned the case to Judge Ingraham of Yuma county. On April 26th, the date for trial theretofore fixed by Judge PHELPS, Judge INGRAHAM, sitting in division No. 1, the county attorney, defendant and his counsel being present, all announced ready for trial, a jury was selected and the trial proceeded to a verdict of guilty. After the verdict, Judge INGRAHAM admitted the defendant to bail in the sum of $5,000. On May 1st Judge PHELPS ordered "that a bench warrant issue for defendant, for the reason that his bond for appearance for sentence is inadequate." On May 27th Judge INGRAHAM, presiding in division No. 1, sentenced defendant to the penitentiary for not less than twelve nor more than fifteen years.
It is said that because Judge PHELPS, the regular judge, had not disqualified or excused himself, and was not unable to try the case, it was not legal to assign it to Judge INGRAHAM; that, if Judge PHELPS had been disqualified, Judge JENCKES, presiding in division No. 2, the case pending in division No. 1, was without authority to assign it to Judge INGRAHAM. Whether defendant's contentions are good depend upon the provisions of the state Constitution and the statutes in force at the time of the trial.
Section 7 of article 6 of the Constitution reads as follows:
"The judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and in case of the disqualification or the inability of the judge thereof to serve, and upon the request of the Governor, shall do so."
[37 Ariz. 348] Supplementing this provision of the Constitution, the legislature enacted paragraphs 503 and 345 of the Civil Code of 1913, and subsequently, by chapter 61, section 2, Laws of 1921, amended the latter paragraph to read as follows:
"The Judge of any superior court may hold a superior court in any other county at the request of the judge of the superior court thereof, and, in case of the disqualification or the inability of the judge thereof to serve, and upon the request of the governor, shall do so. Such visiting superior court judge may hold court either in the stead of the resident superior court judge, or may hold court at the same time in an additional court room which shall be provided, together with all requirements thereof, by the Board of Supervisors upon the request of the resident superior court judge. Such visiting ...