Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Irene Moore was convicted of murder in the first degree, and she appeals.
Reversed and remanded.
George D. Locke, George M. Sterling, and Terrence A. Carson, all of Phoenix, for appellant.
John L. Sullivan, Atty. Gen., John W. Rood, Asst. Atty. Gen., and Edwin Beauchamp, Co. Atty., and Fred J. Hyder, Deputy Co. Atty., both of Phoenix, for appellee.
Stanford, Chief Justice. La Prade and Morgan, JJ., concur.
Stanford, Chief Justice.
[65 Ariz. 71] From a judgment of the court adjudging the defendant guilty of murder in the first degree and fixing the death penalty based upon the verdict of the jury, and from an order overruling the motion for new trial, this appeal was taken.
The facts disclosed at the trial were that deceased, Willie Moore, and defendant were husband and wife. They were members of the Negro race, and had been married and resided together for about 25 years. Both were in their forties. They owned and lived in a house at 1615 East Jefferson Street, Phoenix. This house fronted north on Jefferson Street, and consisted of six rooms, a living room on the northeast front, dining room on the northwest front connected by an archway, a bedroom on the south immediately adjacent to the living [65 Ariz. 72] room, with kitchen adjoining dining room on the south, and two back bedrooms. They also owned and operated a bar on Jackson Street. For sometime prior to the homicide, defendant and deceased had been quarreling concerning attentions being paid by deceased to another woman. There had been some talk of divorce.
Sometime in the morning of August 24, 1945, after deceased had gone to the bar, defendant left the premises in her car, and, from her testimony, drove to Tempe, returning sometime between three and four in the afternoon. According to her statement, she drove by the house, saw that the
door was closed, and having no key, went to the bar. The deceased was not there and she then returned to the residence, saw that the door was open, parked her car and went in. She testified that her husband was sitting in the living room near a radio, and that almost immediately upon her entrance, she and the deceased began to quarrel; names were passed back and forth. She stated that deceased left the living room and entered the bedroom immediately to the south and returned towards the dining room with a 32-20 revolver in his hand, which he pointed at her. That she entered the dining room through the archway, picked up a 38 pistol which belonged to her from a buffet drawer, and returned towards the living room. When she entered the living room the deceased fired, and she immediately returned the fire. The bullet from her gun struck the deceased in the left side of the face, and he fell backwards in the doorway. She laid her pistol on the dining room table, went to the deceased and attempted to staunch the flow of blood with a handkerchief. She then called the police. When the police arrived the telephone receiver was still disconnected.
Several persons residing in houses adjacent to the home of deceased and defendant, after her entrance into the house heard the voices of deceased and defendant raised in quarrel which continued for several minutes. A pistol shot was then heard, followed by another louder report. The time between the first and second shots was estimated by these witnesses at from six to eight minutes. Tests as to the elapsed time made in the courtroom by some of these witnesses reduced the time to no more than one minute. The evidence also indicated that between the time of the first report and the arrival of the officers, a period of approximately 25 minutes had ensued. The officers appeared at the scene within about five minutes after the call had been put in. No one was in the house except defendant and deceased during the time of the altercation until the officers arrived.
The deceased was found dead, lying on his back with his left hand resting parallel to his head, clinched in spasm, and his right hand stretched out almost horizontally from the body, and resting upon the palm of this hand was the 32-20 pistol. The 38 pistol was found on the dining room table. The defendant was in a more or less hysterical [65 Ariz. 73] condition. She admitted to the shooting, but claimed it was done in self defense and practically as above stated. Tests disclosed that both weapons had been recently discharged, an empty chamber being found in each gun. The bullet found lodged in the back of deceased's head against the spinal column was from the 38. Blood stains appeared in the palms of both of deceased's hands. There were no blood stains nor finger prints on the revolver found in his hand.
While, as stated, there had been serious difficulties between defendant and deceased regarding his conduct towards another woman, no evidence was introduced by the state from which any threat of violence by defendant against deceased could be inferred. Defendant's testimony that the shooting occurred during the course of the quarrel is corroborated by the testimony of neighbors who heard the voices of the parties raised in argument, and no further words were heard after the first shot. A thorough examination by the officers failed to disclose any bullet or mark of the bullet which had been discharged from the 32-20 pistol found in the hand of the deceased. It appears that the cooler was on and that all windows were closed. Some evidence was adduced by defendant from which it may be inferred that the front door leading into the living room and in the northwest corner of that room may have been open, and that when the cooler was operating it had a tendency to cause the screen door to stand open. At the time the officers arrived all doors were closed. The fact that neighbors at a distance of fifty or more feet were able to hear the quarrel between defendant and deceased would indicate that there must have been some opening. If the deceased fired at her, as testified by the defendant, while she was standing in or near the archway between the living and dining rooms, it is not probable that the bullet from his pistol would have passed through this doorway if both the door and screen were standing open. There is a possibility, however, that this might have happened. It is the theory of the
state, and from all the facts the jury would be justified in so believing, that after defendant had fatally shot deceased, she fired the one bullet from the 32 outside through a doorway or opening, and then placed this revolver in his hand. The testimony is that the second shot was louder than the first, and, as already indicated, considerable period of time intervened between the first and second shots. In other words, that defendant was attempting to lay the foundation for self defense.
A number of assignments have been presented by defendant, some of which will be considered later. Under the provisions of section 44-2535, A.C.A.1939, this court upon an appeal in a criminal case is required, even though no exceptions have been taken in the trial court, to "review all rulings and orders appearing in the appeal papers in so far as it is necessary to do so in order [65 Ariz. 74] to pass upon the grounds of appeal. * * * The court may also in its discretion, if it deems the interests of justice so require, review any other thing said or done in the cause which appears in the appeal papers, * * *." The second subdivision in this section provides: "Upon an appeal by the defendant from the judgment the appellate court shall review the evidence to determine if it is insufficient to support the judgment where this is a ground of appeal and may review the evidence whether its insufficiency is a ground of appeal or not. Upon an appeal from the judgment by a defendant who has been sentenced to death the appellate court shall review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not."
It will be observed that there is a mandatory duty upon this court to review the evidence, and if the interests of justice require, to direct a new trial. We think, therefore, it is our duty to determine whether the evidence upon which the jury acted, and taken in the strongest light in order to support the verdict, is sufficient to justify first degree murder and the imposition of the death penalty.
Stripped of all nonessentials, the question is: Does the testimony make out a case showing willful, deliberate and premeditated murder? If it does, the verdict of the jury should stand unless there are impelling reasons, in the interests of justice, to set it aside. We think we are bound to follow the ruling of this court in State v. Tuttle, 58 Ariz. 116, 118 P.2d 88, 89, wherein it was said:
"* * * If we had been the jury, we might have given a lessor punishment * * *. The jury saw and heard the witnesses * * *. Those who see and hear the witnesses testify are in a much better position to weigh their testimony than we, and in passing ...