APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.
Mr. Wm. O'Brien Kearns and Mr. James D. Barry, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Renz L. Jennings, Assistant Attorney General, and Mr. Claude Smith, County Attorney, for the State.
[38 Ariz. 299] LOCKWOOD, J.
Herbert Young, hereinafter called defendant, was informed against by the county attorney of Pima county for the crime of murder in the first degree. The jury returned a verdict of guilty, as charged, and fixed the penalty at death, and, from the order overruling the motion for new trial and the judgment on the verdict, the defendant has appealed. There was practically no conflict in the evidence in the case, and the facts may be stated as follows:
[38 Ariz. 300] One John Dye, a taxicab driver in Tucson, early on the morning of the 18th of March, 1930, was found a few miles north of Tucson, suffering from many serious wounds, and was taken to a hospital, where he died a few hours later. While in the hospital he made a dying declaration, accusing defendant of assaulting and robbing him. About nine o'clock that morning defendant was arrested and taken to the police station, where he admitted he had attacked and robbed deceased the night before. There was found in his possession a wallet which was identified as belonging to the deceased, and there were blood stains on his arms and clothing. It was also shown that defendant was then without work, and in immediate need of funds, and that on the morning of the 17th he had seen deceased with a considerable sum of money in his possession. The only evidence offered for the defense was a showing of the previous good character of defendant, and the testimony of the latter to the effect that he had no knowledge or recollection of what happened the night Dye was killed. His whole testimony upon the stand shows clearly that his only defense was that of insanity. There was no possible excuse under the evidence for any other verdict than murder in the first degree, unless the jury had believed defendant's plea of insanity, and by their verdict they evidently did not accept this.
There are but three assignments of error, and we discuss them in their order. The first is that the court erred in permitting the county attorney, over the objection of the defendant, to ask of prospective jurors, some of whom actually sat in the trial of the case, the following question, or one of like tenor:
"If, after hearing all of the evidence, and the instructions of the court as to the law, you were firmly convinced beyond every reasonable doubt that the defendant [38 Ariz. 301] was guilty, do you at this time know of any reason why you could, or would not vote in favor of the infliction of the death penalty?"
It is urged on behalf of defendant that the question required the juror to surrender his statutory discretion to choose between the death penalty and life imprisonment -- in other words, that he was required to say that, if he was convinced beyond a reasonable
doubt that the defendant was guilty of murder, he would in all cases inflict the death penalty. In support of the contention that it was error to allow this question, counsel for defendant has cited the cases of Stroud v. United States, 251 U.S. 380, 64 L.Ed. 317, 40 S.Ct. 176, and Fernandez v. State, 82 Tex. Cr. 129, 198 S.W. 301.
Neither of these cases seems to bear upon the issue. In the first cited, it appears from the opinion that the court refused to sustain the challenge of defendant to a certain juror because the juror said that, in the event of a conviction of murder in the first degree, he would return only a verdict which required capital punishment. The case in no manner discusses whether or not it was error to allow the juror to be questioned in regard to his views on this subject, nor, indeed, what questions were asked him. The most we can take the case as authority for, and this is stretching its language to the uttermost, is that, if a juror is challenged on the ground that he believes capital punishment should be inflicted in all cases of first degree murder, it might be erroneous to disallow a challenge. The case of Fernandez v. State merely holds that it is error to deny a challenge on the ground that the juror has stated positively that he would not under any circumstances accord the accused the benefit of the suspended sentence law. It appears that it is the right of the jury in Texas to pass upon the question of whether a suspended sentence should be [38 Ariz. 302] granted. The matters determined in these two cases, in our opinion, present no similarity whatever to those in the present case.
The law of Arizona provides that a person who has a conscientious scruple against capital punishment shall be neither required nor permitted to sit as a juror in cases where the death penalty may be inflicted. Section 5035, subd. 14, Rev. Code 1928. The examination of the jurors on their voir dire is reported in full in the reporter's transcript, and it appears therefrom that, upon the first objection being made to a question of ...