W. H. Chester, of Phoenix, for appellant.
Fred O. Wilson, Atty. Gen., Chas. Rogers, Asst. Atty. Gen., Warren L. McCarthy, Maricopa County Atty. and Robert H. Renaud, Deputy County Atty., all of Phoenix, for appellee.
Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concurring.
Udall, Chief Justice.
[72 Ariz. 221] This appeal comes here from a retrial of the case of State v. Lane, 69 Ariz. 236, 211 P.2d 821, which this court reversed because of prejudicial error in the admission of hearsay testimony. In the first trial the defendant Charles E. Lane, Jr., was convicted and sentenced to life imprisonment for the murder of his ex-wife, Mary Alice [72 Ariz. 222] Johnson (Lane). In the second, from which this appeal is taken, the defendant was again convicted but was sentenced to death. He has appealed from the judgment and order denying his motion for a new trial, contending that his trial was not fair and impartial nor in accordance with law.
A synopsis of the salient features of the evidence must necessarily be based upon that adduced by the State, since the defendant did not testify nor were any witnesses called in his behalf. As near as it could be established the decedent met her death some time between 2 and 2:30 a. m. on February 10, 1948. She was last seen alive at approximately 2 a. m. by one Adam Goettel who delivered her to the house she occupied alone at 922 South 27th Avenue (two blocks north of Buckeye Road) in the city of Phoenix. Her body was discovered about 6 a. m. by her mother who lived nearby. The decedent was found partly undressed lying in a pool of blood on the floor near her undisturbed bed. She had been shot twice -- one shot had entered her body through the right cheek, the other just below the chin. The lock on the front door to the house had been broken off; the door was slightly ajar, and the lights were still on.
The State necessarily depended upon circumstantial evidence to establish the actual shooting as there were no eyewitnesses whom it could call. However there was much direct evidence upon which the State relied which led to the inevitable conclusion that defendant was guilty of the premeditated murder of his ex-wife.
Defendant, age 30, a resident of the Phoenix area, had married the woman whom he has been convicted of murdering on October 15, 1946. The decedent had been previously married to Johnson, and had a three-year-old daughter as the issue of the first marriage. The marriage with defendant had been an unhappy union and the decedent had permanently left him some 30 days prior to their divorce, which the wife obtained on February 3, 1948. Defendant was extremely jealous of his wife and tried to force her to return to him. A witness testified that just ten days before the killing she overheard the defendant tell the decedent, "* * * If I can't have you I don't want anybody else. Nobody else will have you either." (Emphasis supplied.)
In addition to the above the State relied upon the following facts and the inferences logically deducible therefrom: (1) the defendant had repeatedly threatened to kill his ex-wife, and one witness had heard him tell her, "When I told you I will kill you, I mean it."; (2) it was shown that as a result of these threats the decedent was in mortal fear of her life and had on at least three occasions appealed to the police for protection from him; (3) during the evening prior to the killing, after defendant had made two fruitless attempts to borrow a gun he finally succeeded in borrowing a .22 Winchester rifle from Mac [72 Ariz. 223] Ross, a friend; cartridges for the gun were borrowed from Jimmie Brown, another acquaintance, and both were told by defendant that he was going hunting the next day. The gun was never returned to the owner nor was the death weapon ever found; (4) a ballistics expert's testimony led to the conclusion that the fatal shots were fired from the Mac Ross rifle, -- (More will be said of this evidence later); (5) a gray Plymouth sedan, bearing Arizona license plate number A/H, followed by three unknown numerals, was seen about 2 a. m. parked at the southwest corner of the Allison grocery store, a store located on Buckeye Road some two blocks south of the scene of the crime; (6) the defendant appeared at a service station on South Central Avenue in Phoenix about 2:15 a. m. driving a gray 1947 Plymouth sedan, bearing Arizona license plate number A/H 234,
and after purchasing a gallon of gasoline made a telephone call. There was a mention of the word "dad" and the defendant's part of the conversation, which was overheard by the attendant and a merchant patrolman, was: "I done what I told you I was going to. I am sorry. Get mother up and meet me down at Seventh and Broadway."; and (7), the defendant was not to be found the morning of the killing and it was not until three days later, after an intensive man hunt, that he surrendered to the officers, at which time he was accompanied by his attorney. The Plymouth car driven by him the night of the murder was later found hidden ...