APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment reversed and case remanded for new trial.
Mr. W. E. Patterson and Mr. Edward S. Lyman, for Appellant.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. Palmer C. Byrne, County Attorney and Mr. Charles McDaniel, Deputy County Attorney, for Appellee.
[61 Ariz. 297] STANFORD, J.
Appellant was charged in the Superior Court of Yavapai County, Arizona, under information filed by the County Attorney, with the crime of murder in the first degree, the information alleging that:
"... at Ashfork Precinct, County of Yavapai, State of Arizona, on or about the 21st day of March, 1943, Clifford M. Gevrez did then and there wilfully, wrongfully, unlawfully, feloniously, premeditatedly, with malice aforethought and deliberately shoot, kill and murder one Gertrude Louise Gevrez, a human being."
April 4, 1934, the appellant married deceased; Gertrude Louise Swets, the marriage having occurred after a courtship of about two years. As issue of the marriage there were born two children, Charlotte, who was wight years old at the time of the killing in question, and Roger, who was then seven years of age. At the time of the killing by appellant of his wife, there was pending an interlocutory decree of divorce in the State of California.
When a youth the appellant was brought to Phoenix, Arizona, by his parents. Later they moved to Yuma, Arizona, where he attended high school and later worked for the Southern Railway Company as [61 Ariz. 298] a bell boy. Thereafter he enlisted in the United States Army. He served in the army for approximately 12 years and at the time of the killing in question, he was an inspector of airplanes for the United States Army, and immediately prior to the killing was stationed at Tucson, Arizona. While at Tucson he received notice that he had been transferred to San Diego, California. On the evening of March 20, 1943, he left Tucson by bus, after buying a round trip ticket to Ashfork. He arrived in Ashfork about six thirty A.M. on March 21st and went to the Harvey House where he washed and ate breakfast. About eight o'clock he went to the home of Mrs. Gevrez to visit his children. Upon knocking at the door his wife responded and he advised
her that he had called to see the children. He was allowed to enter the house where the children were getting up for the day and they were called into the living room. During his conversation with the children Mrs. Gevrez left the home and went into town. Appellant took some presents out of his satchel and gave them to his children. At the request of his little girl, Charlotte, he went across the street to look at her playhouse. While at the playhouse he asked his daughter if anyone had been visiting them lately and she replied that there had been no one except Rol (meaning Rol Benner), and she told him that Benner was in the town at that time. When appellant and his little daughter reached the house again he went to his satchel, which he had brought from Tucson, and took out his pistol, and started uptown to find the man Benner. On his way to town he met his wife returning in her automobile and rode back to the home with her. A dispute followed when appellant asked her, after they reached the house, what she had done with her friend, Benner. A very heated argument occurred in the kitchen [61 Ariz. 299] at which place he fired four bullets into the body of Mrs. Gevrez and killed her instantly.
At the trial, by the verdict of the jury, the appellant was found guilty of murder in the first degree and the penalty fixed at life imprisonment, and the judgment of the court so followed and from such verdict and the judgment the appellant has appealed to this court.
The evidence in the case shows that one Rol Benner was the factor which broke up the appellant's home and alienated his wife; that Benner was a minister of the Gospel at Riverside while appellant and his wife lived there with their children. He was pastor of the Unitarian Church. They attended his church, and although he, the said Rol Benner, was married and had a child, the testimony submitted shows that he had to do with changing the love of Mrs. Gevrez from the time he first met her in Riverside in the year of 1938.
While deceased was located at Ashfork, having gone there about Thanksgiving in 1942, until the time of her killing on March 21, 1943, Benner had been in Ashfork and seen her either four or five times.
During a part of their residence at Riverside, the appellant was working at Santa Monica, and often when returning home would find Benner at his home. Later Benner was transferred to Berkeley where he became Dean of The Starr King School for the Ministry, and later Mrs. Gevrez went to Berkeley to take up duties as the librarian, she having previously qualified by attending a school at Riverside while they were living there. During these times appellant continued to carry out his inspection work for the United States Army at Santa Monica, California, and other places, and attempted to purchase a home near his work so he could have his family with him, but found some objection to that by Mrs. Gevrez. Later the Gevrezes moved to a rented home in Los Angeles, [61 Ariz. 300] and the testimony showsthat the attitude of Mrs. Gevrez was cool toward this appellant. He found among her effects, a ring that had been given to her by Rol W. Benner with the initials of R.B. in the same.
The evidence furthers shows that in December, 1941, Mrs. Gevrez commenced divorce proceedings in California against the appellant, but they were later dismissed and a reconciliation was effected. In September, 1942, by mutual consent, the parties placed their children in a private school near Los Angeles. In December, 1942, the appellant commenced divorce proceedings in Los Angeles attempting to restrain his wife from taking their children to Arizona where she had obtained a position given her by reason of a course of study taken under the C.W.A. at Santa Monica, California, while the appellant was stationed at San Diego. The attempted restraint of the children was unsuccessful and on March 18, 1943, an interlocutory decree was entered in the last divorce proceedings and Mrs. Gevrez was given custody of the children with $80 a month for their support. The interlocutory decree mentioned gave the children jointly to the plaintiff and defendant, with personal custody in Mrs. Gevrez with the right of visitation by defendant.
Appellant submits fifteen assignments of error, but we feel it is unnecessary to take up each of the assignments, but it is our desire to pay our respects mainly to ...