[78 Ariz. 55] W. Edward Morgan, Tucson, Hayzel B. Daniels, Phoenix, and I. B. Tomlinson, Bisbee, for appellant.
Ross F. Jones, Atty. Gen., William T. Birmingham, Asst. to the Atty. Gen., and W. E. Polley, County Atty., Cochise County, Bisbee, for appellee.
Arthur Thomas, defendant-appellant herein, was convicted of the murder of one Janie Miskovich and the death penalty was imposed. He has appealed from the judgment and the order denying his motion for a new trial contending that the proceedings
were not fair and impartial nor in accordance with law.
Before setting forth the pertinent facts adduced at the trial we shall consider several[78 Ariz. 56] preliminary matters which the defendant assigns as error.
Motion for Continuance
On April 17, 1953 (all of the events herein mentioned occurred during they year 1953) the case was set for trial on June 1st. On that date, with a large panel of jurors present and with witnesses who had been subpoenaed from distant points in attendance, the defendant made an oral motion for a continuance in order that a sanity hearing might be held. The court's denial of this motion is assigned as error.
In support of his motion counsel stated to the court that defendant within the past 48 hours had informed him that he was unable to remember any of the events leading up to or concerning the commission of the offense charged, and this caused counsel to have serious doubts as to his client's sanity. It was requested that the court appoint two experts to examine the defendant as to his present mental condition.
There are two ways in which the sanity of a defendant in a criminal case may be brought in question. If the defendant was allegedly insane at the time of the commission of the offense, this issue may be litigated as defensive matter by complying with the provisions of Rule 233, Rules Cr.Proc. (now appearing as Sec. 44-1031, A.C.A.1939). If the defendant is allegedly insane at the time of trial, and hence under the common law not triable during the period of insanity, the issue is raised by the method prescribed by Rule 304, Rules Cr.Proc. (Sec. 44-1701, A.C.A.1939):
'* * * If before or during the trial the court has reasonable ground to believe that the defendant * * * is insane, or mentally defective, to the extent that he is unable to understand the proceedings against him or to assist in his defense, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The court may appoint two (2) disinterested qualified experts to examine the defendant with regard to his present mental condition and to testify at the hearing. * * *'
Counsel's statement to the court, unsupported by other evidence, was not such reasonable grounds as to require the court to believe the defendant insane and that proceedings under this statute should be instituted. Counsel argues that the trial judge as yet had not seen the defendant, and hence his action in denying the motion was arbitrary and deprived him of a fair trial.
The case of Fralick v. State, 25 Ariz. 4, 212 P. 377, so strongly relied upon by defendant, is readily distinguishable. We there reversed the trial court's refusal, on motion timely made, to submit to the jury, pursuant to statutory provisions then in force, 1913 P.C. §§ 1264-1269, the issue of defendant's present mental condition, where the request was supported by affidavits of defendant's mother, brother-in-law, and family doctor. In the instant case no supporting[78 Ariz. 57] evidence was submitted nor was the issue again raised. During the long drawn out trial (16 days) the court had ample opportunity to observe the defendant and, had this conscientious judge thought there was reasonable ground for such action, undoubtedly he would have stopped the proceedings and ordered the requested hearing. On this record we hold there was no abuse of discretion in denying the motion.
Change of Venue
It is urged that the action of the trial court in denying defendant's motion for change of venue deprived him of a fair and impartial trial. Counsel contends that on account of the publicity the case had received the feelings of the people of the county were aroused and because defendant was a Negro and the decedent was a white woman such strong prejudice existed that an impartial jury could not be obtained. In support of this contention defendant had previously filed his affidavit and that of one of his attorneys. When the motion was argued on the day the trial commenced, 18 additional affidavits, all obtained from the town of Douglas and 90% signed by Negroes,
were presented. In opposition the state presented 274 affidavits of citizens from every part of the county asserting that defendant could obtain a fair trial in Cochise County.
The rule in this jurisdiction is:
'Whether the application (for a change of venue) should have been granted is largely a matter of discretion of the trial court which we will not disturb unless it clearly appears that such discretion was abused. * * *' Burgunder v. State, 55 Ariz. 411, 103 P.2d 256, 261.
The ease with which a jury was impaneled makes it clear that defendant was not deprived of a fair and impartial trial on this score. The record shows that in obtaining a panel of 32 jurors and three alternates a total of only fifty veniremen were examined. Of the fifteen excused four were challenged for bias and prejudice, the other eleven having been ordered to step aside for entertaining conscientious scruples against the infliction of the death penalty. The following statement seems apropos:
'* * * It is our observation that most people are essentially honest. It is not indulging in presumptions to assume that most if not all jurors who qualify do so honestly and with no secret reservations to promote an evil or dishonest interest. A trial judge may, after denying a motion for change of venue, reverse his ruling at any stage of the proceedings prior to the actual selection and swearing of the jury, if he discerns or becomes convinced that there is skullduggery afoot, and that prejudiced, biased and partial individuals are attempting to qualify as jurors to the preclusion of reasonably securing a fair and impartial [78 Ariz. 58] jury.' State ex rel. Sullivan v. Patterson, 64 Ariz. 40, 165 P.2d 309, 314.
There was no abuse of discretion in denying a change of venue.
Defendant urges that the trial court erred in sustaining the State's challenge for cause of several veniremen who flatly stated on voir dire examination that they would not under any circumstances vote for the infliction of the death penalty even if convinced defendant was guilty of murder in the first degree. He points out that the entertaining of conscientious scruples against the infliction of the death penalty is not one of the eleven grounds enumerated as grounds of challenge to individual jurors for cause under Rule 274, Cr.Proc., Sec. 44-1313, A.C.A.1939. Defendant contends that since Section 5035 of the 1928 Revised Code, providing in part:
'Either party may challenge any individual juror for the following causes:
'14. if the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty, in which case he must neither be permitted nor compelled to serve as a juror',
does not appear in A.C.A.1939, it has been repealed and therefore at present there is no basis for sustaining such a challenge. In this he is in error, for when confronted with a similar contention in the case of Chitwood v. Eyman, 74 Ariz. 334, 248 P.2d 884, we held that the adoption in 1940 of the Rules of Criminal Procedure did not effect repeal of a pertinent section of the Revised Code of 1928 relating to criminal procedure, even though such section was not carried forward by the compiler into Annotated Code of 1939. This ruling is controlling here, hence we are not persuaded by the decisions of other appellate courts such as found in the case of State v. Lee, 91 Iowa 499, 60 N.W. 119, so strongly relied upon by defendant.
Defendant further complains that the court, having sustained the challenge to jurors who indicated they were opposed to capital punishment, should then have sustained challenges made by him to veniremen Nichols and Gilardone since both said veniremen showed a mind so prejudiced that they would not consider, regardless of the evidence, anything less than a death sentence
in the event of a finding that the defendant was guilty of first degree murder.
While there are portions of the testimony of such jurors, which if taken alone might give rise to a different inference, we believe the testimony of each of such jurors as a whole justifies the rulings complained of. For analogous situations and a comparable ruling, see: Leigh v. Territory, 10 Ariz. 129, 85 P. 948; Marquez v. Territory, 13 Ariz. 135, 108 P. 258; Burnett v. State, 34 Ariz. 129, 268 P. 611; Riley v. State, [78 Ariz. 59] 50 Ariz. 422, 73 P.2d 96; State v. Brady, 66 Ariz. 365, 189 P.2d 198.
Furthermore it would seem that by stating 'I pass the juror' defense counsel waived this objection insofar as juror Gilardone-who was examined at great length-was concerned.
From the evidence it cannot be gainsaid that Janie Miskovich is dead and that she came to her death by the use of violent and criminal means at the use of another. This much is conceded in defendant's opening brief, yet he incorrectly maintains that the corpus delicti was not established. The true ...