Ross F. Jones, Atty. Gen., Earl E. Weeks, Asst. Atty. Gen., for appellant.
Douglas Peterson, V. L. Hash and Robert Bernstein, Phoenix, for appellee.
PHELPS, Chief Justice.
On December 1, 1953, Jean Chase, defendant-appellee herein, was convicted in the superior court of Maricopa County of murder in the first degree by a jury of her peers which fixed the punishment at life imprisonment in the state penitentiary at Florence. On the 16th day of December, 1953, the trial court on motion of defendant [78 Ariz. 241] for a new trial granted said motion from which order the State of Arizona appeals.
The court declined upon request to state the ground upon which it ordered a new trial. The State therefore has undertaken to show that the court was not justified in granting a new trial upon any ground stated in the motion. It has presented six assignments of error for our consideration covering in substance the grounds stated in the motion for a new trial.
We stated in State v. White, 56 Ariz. 189, 106 P.2d 508, that the granting or denying of a motion for a new trial is discretionary with the trial court and will not be reversed by this court unless it affirmatively appears that there has been an abuse of discretion. We said in State v. Duguid, 50 Ariz. 276, 72 P.2d 435, 436, that if there is any fair or just reason for the order granting a new trial, it will not be disturbed, but pointed out that the discretion exercised must be a legal and not an arbitrary discretion and must be exercised in a legal manner. The court proceeded to say:
'* * * When the object in granting a new trial is to promote justice and protect the innocent, and the record so discloses, the court's discretion is properly exercised. But if upon an examination of the record it appears no mistake of law or fact occurred in the trial, and that the evidence fully sustains the conviction, it is an abuse of discretion to grant a new trial. * * *'
There was a great deal of irrelevant testimony received in evidence during the course of the trial in this case to which no objection was made b either counsel for the State or the defense, and on occasions the court failed to rule on objections made involving testimony offered both by the State and by the defense.
We believe, however, that it will be unnecessary to consider in this opinion the question of whether error was committed in receiving or rejecting evidence as we propose to base our conclusions upon the question raised in the State's assignment No. 6, to wit, that:
'The lower court in granting a new trial on the ground that the evidence of the state wholly failed to establish by material evidence deliberation, premeditation and malice aforethought.'
Without unduly extending this opinion suffice it to say that in order to sustain a verdict of murder in the first degree in this case the evidence must be of such character as to convince the jury beyond all reasonable doubt that the killing was perpetrated not only with malice aforethought but with deliberation and premeditation. These elements are susceptible of proof by circumstantial evidence, so long as such evidence is sufficient to establish the fact of their existence beyond a reasonable doubt. 41 C.J.S., Homicide, § 317, page 30 and in 40 C.J.S., Homicide, § 192, page 1091, it is said that:
[78 Ariz. 242] 'Proof of the mere fact of killing, or of killing with a deadly weapon, does not raise a presumption of premeditation or deliberation, so as to make the offense murder in the first degree under statutes dividing murder into degrees. However, the premeditation or deliberation which is essential for this purpose may be inferred from the facts and circumstances of the killing.'
See also Moore v. State, 65 Ariz. 70, 174 P.2d 282.
The specific questions presented here which we propose to consider are:
1. Does the testimony in this case compel a finding that the killing was wilful, ...