THE STATE OF ARIZONA, ex rel. Joe Conway, Attorney General, Plaintiff,
THE SUPERIOR COURT OF THE STATE OF ARIZONA, within and for Greenlee County and the Honorable T. E. Allyn, Judge of said Court, Defendants
Original Proceeding in Mandamus. Alternative writ quashed.
Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Special Assistant Attorney General, for Plaintiff.
Mr. Bryant W. Jones, County Attorney, for Defendants.
[60 Ariz. 72] LOCKWOOD, C.J.
This is an original petition for a writ of mandamus directing the Honorable T. E. Allyn, judge of the superior court of Greenlee County, to vacate a judgment, sentence and death warrant, and re-sentence the defendant named in such judgment.
The facts on which the proceeding is based are not in dispute and may be stated as follows: One James C. Rawlins was informed against for the crime of murder in the first degree by the county attorney of Greenlee County. He pleaded guilty and on September 15, 1942, the court rendered judgment of guilty, fixed the penalty at death, and executed a death warrant which reads, so far as material, as follows:
"No legal cause being shown by you or appearing to the Court, it is the judgment of the Court that you are guilty of the crime of murder in the first degree of Marilyn Erma Atkins, a human being, committed in the County of Greenlee, State of Arizona, and that you shall, within ten (10) days from the date hereof, be by the Sheriff of Greenlee County, State of Arizona, transferred to the Arizona State Prison at Florence, Arizona, and by said Sheriff delivered to the Superintendent thereof, and during the week beginning on the 15th day of November, 1942, and within the walls of said prison at the hands of the said Superintendent thereof, you James C. Rawlins, shall be executed by administering to you lethal gas until you are dead, dead, dead and may God have mercy on your soul." (Italics ours.)
[60 Ariz. 73] Before the week fixed for the execution as aforesaid, the attorney general filed
this proceeding, claiming that the sentence and death warrant were irregular in that they fixed a specified week during which the execution should be carried out instead of a specified day, and that the same was contrary to law. This contention was based upon the provisions of initiated measure No. 306 adopted by the people in the constitutional manner on November 5, 1918. Laws 1919, Initiative and Referendum Measures, p. 17. This measure, so far as material to the present case, reads as follows:
"Sec. 2. When a judgment of death is rendered, a warrant, signed by the judge, and attested by the clerk, under the seal of the Court, must be drawn and delivered to the sheriff. It must state the conviction and judgment, and appoint a day on which the judgment is to be executed, which must not be less than sixty nor more than ninety days from the time of judgment, and must direct the sheriff to deliver the defendant within ten days from the time of judgment, to the superintendent of the State prison of this State, for execution." (Italics ours.)
The position of the attorney general may be stated as follows:
(a) Under section 22, of Art. 6, of the Constitution, which reads as follows:
"(Criminal procedure.) -- The pleadings and proceedings in criminal causes in the courts shall be as provided by law. No cause shall be reversed for technical error in pleading or proceedings when upon the whole case it shall appear that substantial justice has been done."
all pleadings and proceedings in criminal cases must be specifically provided for by an act of the legislature, or by an initiated measure under the provisions of Art 4, part 1, section 1, subd. 1, which is in the following language:
"(Initiative and referendum.) -- (1) (Legislative authority.) The legislative authority of the state shall [60 Ariz. 74] be vested in a legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature."
(b) The people adopted section two of initiative No. 306, supra, and under Art. 4, part 1, section 1, ...