[82 Ariz. 136] Arthur M. Johnson and Robert E. Yount, Phoenix, for appellant.
Robert Morrison, Atty. Gen., and L. Alton Riggs, Sp. Asst. Atty. Gen., for appellee.
LA PRADE, Justice.
The defendant-appellant, Leonard Coey, was convicted of the crime of murder in the first degree and sentenced to be executed. From the judgment and sentence he has perfected this appeal.
There is no significant dispute as to the events which led up to, and included, the alleged crime. The facts briefly stated are as follows: The deceased victim was the wife of the defendant. She was approximately half his size, and about half his age. She was employed and he was not. She had filed for divorce against the defendant, and the court had issued the usual 'restraining order and order to show cause' directing, among other things, that he leave the family abode forthwith. Defendant's first knowledge of this was on the morning of January 27, 1955, when a process server appeared at the home and made service upon him. He testified that he had made preparation to leave but was reluctant to do so because he felt that he should remain with his children to protect them from his wife. In the early afternoon of the same day the defendant and his wife entered a small shed at the rear of their home, and while there the defendant mortally wounded his wife with a .45 caliber revolver which he had obtained for the claimed purpose of protecting his children from anticipated assaults by his wife. He then loaded her body in his automobile, drove to the Maricopa County Sheriff's office, where he announced that he had a dead woman in the car, and while there he pulled her body out of the automobile to the ground and stated 'there is the son-of-a-bitch. She tried once too often to kill me and my kids'.
Defendant freely gave a statement setting forth the above events but claimed that while he and his wife were in the shed the wife attacked him with a hammer and he then shot her. Defendant continued to maintain this theory of 'self-defense' throughout the trial, although it was by no means supported by the evidence, and, at his insistence, his attorneys presented such defense. His attorneys at the same time urged, over his violent objections, the defense of insanity. The defendant's counsel conceded that except for the issue of insanity the jury might well have found from the evidence that the defendant committed murder in the first degree.
The appellant presents eight assignments of error, each of which is separagely considered herein.
[82 Ariz. 137] Under assignment No. 1 appellant contends that the jury was erroneously instructed on the matter of 'partial insanity', on the ground that there was no evidence upon which such instruction could be predicated. The issue of insanity was in the case at the instance of the defendant. Testimony on this issue was introduced, including both lay and expert testimony. The instruction assailed is in substance the same as that approved by our court in State v. Macias, 60 Ariz. 93, 131 P.2d 810, and in State v. Eisenstein, 72 Ariz. 320, 235 P.2d 1011. It is consistent in all respects with the basic test of insanity generally applied in criminal cases, namely, whether the party accused possessed the ability to distinguish right from wrong at the time of the commission of the alleged crime. State v. Macias, supra; Burgunder v. State, 55 Ariz. 411, 103 P.2d 256. The term 'partial insanity' referred to and defined in this instruction is merely explanatory of the basic test hereinabove set forth. The instruction when viewed in the light of the basic test explained the type of insanity which would relieve the defendant from the consequences of his act, in language simple and readily understood by the jury. It was, therefore, a proper instruction on the issue of insanity.
In assignment of error No. 2 it is contended that a statement made to the jury by the county attorney, to the effect that if their verdict were life imprisonment rather than death, the defendant would be imprisoned for only a few years, constitutes reversible error based upon resulting prejudice. Such comment is permissible in this jurisdiction. State v. Jordan, 80 Ariz. 193, 294 P.2d 677; State v. Macias, supra. In the latter case the rule was set forth that in first degree murder cases, where the jury has discretion to fix the penalty at either death or life imprisonment, it is proper for the jury to consider the probability that the defendant will actually serve the penalty should they determine the sentence to be
life imprisonment. In accord with this rule it was held that the county attorney's statement alluding to such probability did not constitute error. We are apprised of no substantial reason for departing from the holding of that case, and, therefore, find that the comparable comment made in the case before us was not error.
Under assignment No. 3 appellant asserts that failure of an expert, appointed by the court pursuant to Rule 305, Criminal Procedure, section 44-1702, A.C.A.1939; omitted from Rules of Criminal Procedure effective January 1, 1956, to testify, where the appointive order was not vacated, constitutes reversible error. Court rules, like statutes, must be construed in the light of the purpose for which they were adopted. Collins v. Superior Court, 48 Ariz. 381, 62 P.2d 131; DeCamp v. Central Arizona Light & Power Co., 47 Ariz. 517, 57 P.2d 311. In State v. Cassady, 67 Ariz. 48, 190 P.2d 501, 506, we said:
[82 Ariz. 138] 'Our rules of criminal procedure should be construed so as to promote justice-not to thwart it. * * *'
The latter portion of Rule 305, supra, provided that:
'* * * The experts appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by ...