APPEAL from a judgment of the Superior Court of the County of Maricopa. H. C. Speakman, Judge. Judgment affirmed.
Mr. O. V. Willson, Mr. Frank Dykes, Mr. Howard G. Richardson, Mr. Erwin H. Karz, Mr. Jacob Morgan, and Mr. Arthur C. Verge, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall and Mr. R. B. Salmon, Assistant Attorneys General, and Mr. Lloyd J. Andrews, County Attorney, for the State.
[41 Ariz. 177] JENCKES, Superior Judge.
The defendant and appellant, Winnie Ruth Judd, was tried in the superior court of Maricopa county upon a charge of murdering one Agnes Ann Le Roi on or about the 16th day of October, 1931. The jury returned a verdict of murder in the first degree and fixed the punishment at death. From the judgment of conviction [41 Ariz. 178] and from the order of the trial court denying her motion for a new trial the defendant prosecutes this appeal.
The evidence adduced by the State in support of the charge was substantially as follows: The appellant, a young married woman, who will hereinafter be designated either as the defendant or Mrs. Judd, was on and for some time prior to the 16th day of October, 1931, residing apart from her husband, Dr. William C. Judd, in Phoenix, Arizona. She and the deceased, Agnes Ann Le Roi, were employed at the Lois Grunow Memorial Clinic. The latter resided with another woman by name Hedvig Samuelson, familiarly called "Sammy," in an apartment located at 2929 North Second Street, and Mrs. Judd resided in an apartment at 1130 East Brill Street in Phoenix, Arizona. These three women were intimately acquainted with one another. The defendant was a frequent visitor at the apartment of the other two women on Second Street and had opportunity to become familiar with the arrangement of the rooms and of the furniture and with the personal habits and customs of the occupants. At or about 10:30 P.M. of the 16th of October, 1931, two witnesses living on opposite sides of the apartment at 2929 North Second Street each heard three shots which they identified as pistol shots and located as coming from that apartment. They each looked toward the apartment and saw that it was dark; that there were no lights shining from it. A street-car conductor on the Indian School line traversing Third Street testified that at either 9:40 or 10:25 P.M., on either October 16th or 17th the defendant boarded his car at Third Street and McDowell Road and was let off at the Thomas Road crossing, about three blocks from the apartment at 2929 North Second Street; that returning south he picked her up at the [41 Ariz. 179] Thomas Road crossing at 11:25 P.M. and let her off at Willetta Street. A nurse employed at the Grunow Clinic testified that on the morning of October 17th the defendant telephoned to her at the Clinic, endeavoring to imitate the voice of the deceased, and said that she was Mrs. Le Roi and that she would not be at work that day. An employee of a transfer company in Phoenix testified that about 10 minutes of 10 o'clock on the night of October 17th the defendant telephoned to the office of the company and requested him to call at 2929 North Second Street and get a trunk to be taken to the Union Station; that she met him and two other men who accompanied him upon their arrival at that apartment and pointed out the trunk, a heavy "packer" trunk standing on the floor of the front room, which she directed them to transport to the Union Station to go out on the 10:40 train to Los Angeles; that he informed the defendant that the trunk was too heavy to be shipped as baggage, estimating it to weigh about four hundred pounds; that the defendant then directed him to transport the trunk to her "sister's" house at 1130 East Brill Street. This house was in reality the apartment where she herself resided. The trunk was taken to that address by the transfer employees on their truck, the defendant riding with them. On the afternoon of October 18th the defendant's landlord, with the assistance of his son, transported in his automobile, at the request of the defendant, two trunks, one a large "packer" trunk and the other a small "steamer" trunk, a suitcase, a leather grip, and a hat box, together with the defendant, from her apartment at 1130 East Brill Street to the Union Station in Phoenix. At the station the defendant checked the trunks to be shipped to Los Angeles as baggage on the "Golden State Limited" and boarded the chair car of that train, taking with her into the [41 Ariz. 180] car the suitcase, the grip, and the hat box. The baggageman on that train noticed an offensive odor coming from one of the trunks and that there was leaking from it what he believed to be blood. Upon arrival of the train at Los Angeles on the morning of October 19th, he immediately notified the Los Angeles baggage
agent, who ordered the trunks held. When the defendant left the train at Los Angeles, she had her hand luggage deposited in the ladies' waiting-room, leaving it there and never returning to claim it. About noon of October 19th the defendant came with her brother to claim the trunks. The agent told her that the contents of the trunks would have to be inspected before delivery to her and requested her to open them. Defendant then said that she did not have the keys and would have to phone her husband to bring them down to the station. She was given an opportunity to phone, but reported that she was unable to locate her husband by telephone and would have to go and bring him to the station. The trunk checks were given to her and she departed never to return. An officer from the police department was then called and he opened the trunks. The larger trunk was found to contain the body, intact, of a woman later identified as the deceased, Agnes Ann Le Roi. The smaller trunk contained portions of the body of a woman later identified as Hedvig Samuelson, and the suitcase contained other portions of that body. In the hat box, among other things, was discovered a kit of surgeon's tools, a scalpel, and a 25-caliber automatic pistol. In a purse which had been left with the hand luggage was found one lead bullet and two empty shells. It was later on shown that the automatic pistol removed from the hat box had fired these empty shells and bullet, as well as another bullet afterwards removed from the body of Agnes Ann Le Roi and another shell afterwards [41 Ariz. 181] found in the apartment at 1130 East Brill Street. The defendant surrendered to the Los Angeles police on October 24th and was returned to Phoenix.
Upon the trial the state introduced in evidence, counsel for defendant announcing that they had no objection thereto, a certain document or letter which was shown to be in the handwriting of the defendant and written upon postal telegraph blanks. The instrument, State's Exhibit "W," was referred to throughout the trial as the "drain letter," because it was recovered from the drain or soil pipe of a toilet in the Broadway Department Store in Los Angeles by the assistant engineer of the building, whose attention was called to the toilet being clogged. This letter was apparently intended by the defendant for her husband, and contained, besides a recital of certain episodes occurring in her life, an account of events leading up to the killing of the two women and a graphic, if somewhat incoherent, description of what is therein purported to have taken place at the time of the killing. That part of this letter which purports to set forth the events preceding and at the time of the killing is quoted further along in this opinion.
Upon the trial defendant did not take the witness-stand. By far the greater portion of the evidence adduced upon her behalf was to support the defense of insanity which was interposed by the defense. Aside from that, evidence was introduced to corroborate the purported statements contained in the "drain letter" that the killing occurred on the morning of October 17th instead of on the night of October 16th, one witness who lived about five hundred feet southeast of the apartment at 2929 North Second Street testifying that about six o'clock of that morning he heard the screams of a woman coming from that apartment for a period of about five minutes and then heard two shots about five seconds apart. [41 Ariz. 182] Also, to corroborate defendant's story that she was shot in the hand during her struggle with Miss Samuelson, four witnesses were produced by the defendant who testified that on Saturday, October 17th, they saw the defendant with her left hand in a bandage. Other witnesses for the defendant testified to the friendly relations apparently existing between her and the deceased immediately prior to the killing.
Twelve assignments of error are presented for consideration, which for convenience will be grouped under. five headings, viz.: (1) Assignments Nos. 1 and 2, refusal of the trial court to instruct the jury upon the law of self-defense. (2) Assignment No. 3, denial by the trial court of defendant's motion for a new trial upon the ground that the juror Kleinman was not qualified to sit as a juror. (3) Assignments 4 to 10, inclusive, alleged erroneous instructions upon the law of insanity. (4) Assignment No. 11, the overruling by the trial court of defendant's objections to certain questions propounded to the defendant's witness Dr. Stephens upon cross-examination. (5) Assignment No. 12, alleged error of the trial court in placing limitations at the close of the state's case upon certain evidence introduced by the state with respect to the killing of Hedvig Samuelson.
Assignments of error grouped under heading No. 3 will first be disposed of. By these assignments error is predicted upon the instructions of the trial court on the question of insanity, No. 4 assigning as error the refusal to give defendant's requested instruction No. 10 as follows:
"The term 'insanity,' as used in these instructions means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature and quality of the act she is charged with having committed, or where though conscious of it and able to distinguish [41 Ariz. 183] between right and wrong, yet her will, by which I mean the governing power of her mind has been so completely destroyed by insanity, that her actions are not subject to it, but are beyond her control. If, therefore, the accused in this case was at the time of the act insane, as this term has been defined to
you, then your verdict should be not guilty, or if you entertain a reasonable doubt as to whether or not the defendant was insane, then ...