V. L. Hash, of Phoenix, attorney for appellant.
Fred O. Wilson, Attorney General, Maurice Barth, Asst. Atty. Gen., Warren L. McCarthy, Maricopa County Attorney, Phoenix, for the State.
De Concini, Justice. La Prade, C. J., and Udall, Stanford, and Phelps, JJ., concurring.
De Concini, Justice.
[69 Ariz. 204] Defendant was informed against and tried in the Superior Court of Maricopa County for the murder of one William B. Allen. The jury found him guilty of murder in the second degree. He was sentenced to serve from ten to twelve years in the Arizona State Penitentiary, and from this judgment he appeals.
Defendant's wife, Mary K. Johnson, made a chance "pick-up" acquaintance with said Allen on the 22nd day of April, 1948, and left Phoenix, Arizona, with him on the same day. The couple toured several states. Mrs. Johnson kept her husband, the defendant, advised of her whereabouts by constant requests for money. In June, 1948, they returned to Arizona and lived in Yuma purportedly as man and wife. Defendant Johnson, hearing they were in Yuma, went there to see if she would sign papers in connection with a pending divorce action which he had filed after her departure. He found the couple in a hotel room together and summoned the police officers. The officers told him they could do nothing because they had no warrant for the arrest of either of the parties. Defendant Johnson then returned to Phoenix. Later defendant's wife and William B. Allen went to Mesa, Arizona. On the 12th day of July, they stopped in at the barber shop of Aubrey Johnson, brother of defendant, on East Van Buren Street in Phoenix. While they were there the defendant Johnson made his appearance, and the usual small talk ensued. During that
time Allen remarked that he had taken defendant Johnson's wife away from him, and that he could have her without being married to her. The parties all drank some whiskey and became somewhat intoxicated. Finally it was decided that they [69 Ariz. 205] would go to defendant's home on South 20th Street near Baseline Road to get Mrs. Johnson's clothes. Defendant drove the car, Allen sat next to him, and defendant's wife next to Allen -- all in the front seat. Allen taunted defendant by making obscene remarks and exhibiting lewd physical conduct toward defendant's wife. At a point on Baseline Road, she, for some reason, shut off the ignition of the car. Allen turned it on; she turned it off again. Then she and Allen got out of the car. Johnson proceeded to his home, but in a short period of time came back to where the couple was standing. He stopped his car across the road, alighted, and fired at Allen with a 22 rifle, shooting him a number of times both before and after he died. Defendant immediately phoned the sheriff's office and told them what he had done. He was arrested by the sheriff's deputies at about 5 p. m. on that day.
Defendant appeals on five assignments of error. Assignments 1, 2, 3, and 4 all deal with the admissibility of evidence. Numbers 3 and 4 will be taken up together. We shall treat only the portions meriting attention.
The error complained of is that the court permitted a deputy sheriff and a newspaper reporter to testify that immediately after defendant was picked up and brought to the courthouse he told them he had just killed a man, this on the ground that such statements amounted to a confession and the proper foundation had not been laid for the admissibility of such evidence. This contention will be disposed of together with assignment of error No. 1.
The first assignment of error deals with the introduction of Exhibit "H" to which there was no objection by defendant's counsel. Exhibit "H" was a reporter's transcript of a statement made by defendant to a deputy county attorney, the sheriff, and one deputy sheriff, ...