[80 Ariz. 194] Clifton E. Bloom and Fred W. Fickett, Tucson, for appellant.
Robert Morrison, Atty. Gen., and L. Alton Riggs, Sp. Asst. to the Atty. Gen., for appellee.
Defendant Richard Lewis Jordan appeals from judgment finding him guilty of murder[80 Ariz. 195] in the first degree and sentencing him to death.
On May 24, 1954, in the early evening, defendant visited the Club Esquire, a night club in Tucson, Arizona and at that time was introduced to one Phyllis Mae Thompson who had stopped at the Club to deliver a message to the manager. After about an hour, during which time defendant drank some beer and Miss Thompson a soft drink, they left the Club Esquire together and went to the Tropical Inn, also a night club in Tucson. Here defendant again drank some beer and Miss Thompson had a soft drink. At about 11:00 o'clock p. m. they returned to the Club Esquire for a short time and then went back to the Tropical inn. They left the Tropical Inn around one o'clock on the morning of May 25th.
About 4:30 o'clock in the afternoon of May 25th, the body of Phyllis Mae Thompson was found in the desert approximately six or seven miles from Tucson. The body was approximately 50 to 60 feet from the road and was completely disrobed except for the right shoe. There were 16 stab wounds in the chest area, four of which had penetrated the heart. Her face was mutilated by a number of knife incisions. Miss Thompson's clothing was found approximately 600 feet from the body.
Defendant was charged with the first degree murder of decedent. He pleaded not guilty and thereafter filed a notice of intent to make a defense of insanity at the time of the alleged commission of the offense charged; and also, a defense of alibi. Upon trial, the jury found the defendant guilty of murder in the first degree and fixed the penalty of death. From judgment and sentence entered upon this verdict and from order denying motion for new trial defendant appeals.
There are 23 assignments of error, 19 of which are that the county attorney made improper and prejudicial argument to the jury and the court erred in not instructing the jury to disregard the same. The other assignments are claimed error of the trial court in admitting evidence over defendant's objections.
In his address to the jury the prosecutor in persuading the jury to inflict the death penalty stated:
'I could be mercernary and talk to you about the finances of it. I don't think that the got any place in it but it must take five thousand dollars a year to maintain a prisoner up there. I may take twice that or half of that. If it takes five thousand dollars a year to guard him and feed him and take care of him, he has got a life expectancy of forty or fifty years, the taxpayers of Arizona are going to have to pay a quarter of a million dollars for the luxury of keeping him alive when he was done what he did and we can never again trust him outside the prison walls.'
[80 Ariz. 196] Such argument is clearly indefensible as a reason for the infliction of the extreme penalty. The jury is given the discretion in such cases to impose life imprisonment or death, but such discretion must be based upon legitimate reasons and the expense of 'keeping him alive' is not a legitimate reason. The statement even goes further and assumes a fact not in evidence and which could not have been put in evidence, that it would probably cost the state five thousand dollars a year or an aggregate of about a quarter of a million dollars. As was well stated in Commonwealth v. Clark, 322 Pa. 321, 185 A. 764, 766:
'We have not reached the stage where men should be sent to the electric chair in order to avoid the expense of keeping them in the penitentiary. The defendant was on trial for his life and should not have had his cause prejudiced by intemperate remarks calculated to prejudice the jury and warp their judgment by the thought of the expense to the commonwealth which would affect them as taxpayers.'
Also, the county attorney said:
'Maybe you can wonder why or appreciate why perhaps Mr. Thompson and some of the other people in the case think maybe the death penalty is too good for him, think maybe he ought to suffer the way she suffered.'
This statement also injected in the minds of the jurors matters with which they should not be concerned in deciding the penalty. What a relative of the decedent or other people might think the penalty should be is not a matter to be considered. The jury exercises the discretion from the nature and gravity of the crime as disclosed by the legitimate evidence. The opinions of relatives and other people not members of the jury are not factors which the jury is entitled to consider in the rendition of its judgment imposing the penalty of execution. As in the first mentioned statement, there was not and could not be any ...