The judgment is affirmed.
Nolen L. McLean, of Tucson, attorney for appellant.
Fred O. Wilson, Attorney General, Maurice Barth, Asst. Atty. Gen., Charles Rogers, Asst. Atty. Gen., Bryce H. Wilson, Pima County Atty., Tucson, Attorneys for appellee.
LaPrade, Chief Justice. Stanford, Phelps and De Concini, JJ., concur. Udall, Justice (dissenting).
LaPrade, Chief Justice.
[69 Ariz. 146] The defendant (appellant) Charles B. Voeckell, age 26 years, was convicted in the superior court of Pima County upon both counts of an information charging him with (1) assault with intent to commit murder upon the person of Richard Y. Ginter, and (2) assault with a deadly weapon upon the latter's wife Beverly Ginter. The two crimes grew out of the same set of circumstances. After denial of a motion for a new trial, judgment was pronounced sentencing the defendant to serve 20 to 25 years on the first count and 5 to 6 years on the second count, the sentences to run consecutively. This appeal followed.
The facts out of which the prosecution arose are as follows. On or about the 12th day of November, 1948, a Mr. and Mrs. Richard Y. Ginter were returning from a hunting trip in Sabino Canyon, Pima County, Arizona, and while coming down a mountain side, met defendant. As they passed each other, Mr. Ginter and defendant
exchanged greetings and defendant asked if they had seen any deer, to which inquiry Mr. Ginter replied that they had seen several does but no bucks. Voeckell's response was, "There aren't any deer in these hills." The Ginters continued on their way down the canyon and thought defendant continued on up the canyon, but a few minutes later defendant returned to their car where they were packing up preparatory to returning to Tucson. Defendant, noticing that Ginter had left an 8 mm. German rifle leaning on the fender of his car, remarked that it was a bigger gun than his, inquired if it was loaded, manipulated the bolt mechanism, and looked into the magazine. After defendant had finished examining the gun, Ginter placed it in the back of his car. While he was so engaged defendant got behind him and pointing his .30-30 gun at his chest commanded him and Mrs. Ginter to start moving, which they did, defendant following close behind. Ginter asked defendant several times where [69 Ariz. 147] he wanted them to move; defendant said, "Over there," pointing to a ravine. Ginter turned around and grabbed defendant's .30-30 gun, pulling it down to the ground, at which time defendant fired, hitting Ginter in the foot. Defendant then pushed the stock of his gun into Ginter's head, stepped back, pulled out a .22 pistol, and shot Ginter several times, two of the shots hitting him in the face and one in the hand.
While defendant was firing at Mr. Ginter, Mrs. Ginter entered into the struggle to aid her husband. Defendant hit her over the head with the pistol, fired one shot at her, the bullet grazing her elbow, and pointing the gun at her chest pulled the trigger twice, but both shells misfired. During this melee Ginter arose from the ground, grabbed Voeckell, and finally subdued him by hitting him over the head with the butt of defendant's gun. While the Ginters were preparing to leave, defendant started to arise, whereupon Ginter hit him on the head again, rendering him unconscious, and departed. Upon regaining consciousness appellant stealthily found his way home by back-way trails, hiding from airplanes searching for him and dogs trailing him.
The following day (November 13th) two criminal complaints were filed in the justice court charging him with assault with intent to commit murder and assault with a deadly weapon.
On November 16, 1948, in the superior court of Pima County insanity proceedings were instituted against defendant by a complaint signed by his mother, which is still pending. After preliminary hearing on November 19, 1948, the accused was bound over for trial, and thereafter on the same day, two informations were filed charging the two offenses. Following a plea of "Not Guilty" as to both counts, the case was set for trial. A notice of intention to present insanity as a defense was served on the county attorney, and subsequently a motion for examination to determine the then mental condition of the defendant was granted by the court. An examination was made by three court-appointed doctors, two of whom testified that defendant was competent to aid his attorney in his defense and understood the nature of the proceedings instituted against him, the third doctor being of the opinion that he was deficient in both respects. At the conclusion of this preliminary hearing, the court concluded that he was sufficiently capable of understanding the nature of the charges against him and able to assist his counsel in his defense, and ordered him to trial.
On the trial no attempt was made by defendant or his witnesses to deny any of the charges against him. All of the evidence of defendant was directed toward establishing that at the time of the commission of the acts charged he was so insane as not to be able to distinguish between right and wrong. Evidence pro and con respecting the sanity of the accused was given by both expert and lay witnesses on behalf of defendant and the state. The jury commenced [69 Ariz. 148] their deliberations at 4:05 p. m., Saturday, January 8, 1949. On Monday, January 10, 1949, at 8:10 p. m., the jury was called back for additional instructions -- 52 hours and 5 minutes after the matter had first been submitted. The jury had not communicated with the judge or indicated that they were unable to agree, and had
asked for no additional instructions; nor did the court make any inquiry as to how the jury stood. The judge, exercising what he considered to be a sound, legal discretion, proceeded voluntarily to instruct the jury as follows:
"Members of the jury, I am going to give you a further instruction in this case. You are further instructed, members of the jury, that although the verdict to which each juror agrees, must, of course, be his own verdict and the result of his own convictions and not a mere acquiescence in the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result you must examine the question submitted to you with candor and with proper regard and deference to the opinions of each other. There is no reason to suppose that this case will ever be submitted to twelve more intelligent, more impartial or more competent jurors to decide it, or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide this case if you can without yielding your conscientious convictions. In conferring together you ought to pay proper attention to each other's opinions and listen with a disposition to be convinced by each other's arguments, and, on the other hand, if a larger number of your panel are for conviction a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression on the minds of so many jurors equally honest, equally intelligent with himself, who have heard the same evidence, with the same oath; and if on the other hand, the majority are for the defendant the minority should ask themselves whether they may not and ought to reasonably doubt seriously the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors * * * and with that instruction you will continue your deliberations, Members of the Jury." Within 15 minutes after the giving of this instruction the jury notified the bailiff that they had reached a verdict, and on being brought into court returned verdicts of guilty on each count.
By sufficient assignments of error complaint is made that the court erred (1) in giving the instruction above quoted under the circumstance it was given; (2) in proceeding to trial in the criminal matter without first having disposed of the insanity proceedings instituted by the mother; (3) in refusing to permit defendant to interrogate the witness Georgia Smith with respect to her opinion as to whether defendant [69 Ariz. 149] was insane; (4) in refusing to instruct the jury to disregard Exhibit "E"; and (5) in imposing excessive sentences. The pertinent facts appertaining to these several assignments will be delineated at the time they are considered.
The merits of this appeal, if any, lie in a consideration and determination of the propriety of giving this instruction under the attendant circumstances. Defendant contends that by this instruction the court urged an agreement upon a verdict, was commenting on the evidence, and coerced the jury into arriving at a verdict, thus interfering with the exercise of free and unbiased judgment by those jurors comprising the minority. The propriety of giving this instruction under the circumstances existing at the time it was given or at all presents a question of first impression in this jurisdiction. At least the Arizona cases cited by counsel are of little help in solving the problem. In Pfeiffer v. State, 35 Ariz. 321, 278 P. 63, we held that certain remarks made by the trial court from which the jury might well infer that they would be held together until they reached a decision constituted prejudicial and reversible error, as being an indication by the judge of his opinion as to the guilt of the defendant. In the later case of Douglass v. State, 44 Ariz. 84, 33 P.2d 985, we held that the judge's statement to the jury during their deliberations that he would not be present until late the following day to receive a verdict, accompanied by a warning that he did not wish to coerce or influence the jury, was not prejudicial or erroneous
There is definitely a split in authorities as to the propriety of giving an instruction
similar to the one challenged in the instant case, and its use has been the subject of many conflicting judicial opinions. For an exhaustive treatise of this matter of Urging Agreement and Coercion of Jury, see the following texts: 53 Am.Jur., Trial, Secs. 950 to 964, incl.: 64 C.J., Trial, Sec. 641, 842, 843; 8 Cal.Jur., Criminal Law, Sec. 432, at page 394; and Bowers Judicial Discretion of Trial Courts, secs. 344, 371, and 376. The reported cases are collated in the excellent annotations appearing in Ann.Cas.1915D, 668; 85 A.L.R. 1420, 1436; and 109 A.L.R. 72, 85. Apparently its use originated in Massachusetts and Connecticut according to a statement appearing in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 157, 41 L.Ed. 528, where the giving of such an instruction was held not to be prejudicial.
Instructions of the same import as the one here under consideration have been approved in courts of last resort all over the United States -- North, South, East, and West. In some instances the instruction was given in the first instance; in others, after many hours of deliberation, and where hopeless disagreement has been announced. See note 85 A.L.R. 1436; 109 A.L.R. 85. It all simmers down to a matter of discretion resting in the trial court. Did the court in the giving of this instruction invade [69 Ariz. 150] the province of the jury? Does it contain any intimation of the verdict to be reached? Did it have any tendency to make any juror yield his conscientious convictions? Our considered answer to each of these interrogatories is "No." After having analyzed the instruction, as a whole and sentence by sentence, we are profoundly impressed with its value, fairness, and good sense. It counsels the jurors to exchange opinions and ideas, to review the facts and reasonable inferences to be drawn therefrom; to question the tenability of preconceived opinions, prejudices, and fetiches that are not actuating the majority, or if previously entertained have been submerged by the application of reason induced in part by proper regard and deference to the opinions of others.
The law is enforced not by the recalcitrant few, but only through unanimity which in an era of individualism is difficult of attainment in the course of any human endeavor, especially when the mind is repeatedly stimulated with admonitions by the court that the ultimate verdict must express the conscientious convictions of each individual juror. In our judgment this instruction is wholly wanting in the vicious attributes leveled at it. Those cases holding instructions of like import to be bludgeons of intimidation strike an unresponsive chord in the majority of this court. If it fathomed the consciences of injudicious jurors, it served its purpose. Mr. Justice Brown, ...