[83 Ariz. 222] Martin S. Rogers, Tucson, for appellant.
Robert Morrison, Atty. Gen., and James H. Green, Jr., Asst. Atty. Gen., and Raul H. Castro, County Atty., Jack I. Podret, Chief Criminal Deputy, and George B. Morse, Deputy County Atty., Tucson, for appellee.
Defendant was convicted of first degree murder, sentenced to life imprisonment, and appeals from the judgment of conviction and the order denying a new trial.
The homicide occurred on November 18, 1956, between 1:00 and 1:30 o'clock p. m. in the back yard of the home of defendant located at 806 South 8th Avenue, Tucson, Arizona.
Defendant has set forth nine assignments of error which are intermingled with facts and arguments but which we have reduced to the following propositions: first, that the evidence was insufficient to justify the verdict; second, the jury was misdirected as to the law; third, that the defendant was erroneously restricted in examining prospective jurors as to the law involved in the case; and fourth, that certain evidence was improperly rejected.
We have carefully examined the evidence and the instructions of the trial court to the jury. The evidence was conflicting as to the facts and circumstances immediately preceding and surrounding the actual commission of the homicide and this court on appeal will not substitute its judgment for that of the jury in a criminal prosecution. The instruction of the trial court fairly set forth the law applicable to the case and we find no error was committed in refusing to give certain instructions offered by defendant.
Defendant urges that the trial court erred in limiting the examination of jurors on voir dire examination relating to the degrees of murder and manslaughter. The extent to which parties should be allowed to examine jurors as to their qualifications cannot be governed by any fixed rules. It is not the province of counsel on voir dire examination to instruct jurors on matters of law. The extent of examination must necessarily be left to the sound discretion of the trial court to determine the presence or absence of bias and prejudice. The trial court correctly and adequately instructed the jury as to the law, and we find no abuse of discretion in limiting the voir dire examination of jurors.
Defendant contends in this court, and repeatedly urged before the trial court, that it was error for the trial court to deny cross-examination of witnesses for the prosecution to show deceased had previously threatened her life, caused disturbances and inflicted her with bodily harm.
It appears from the testimony that the defendant admitted the killing but claimed it was done while under great fear in defense[83 Ariz. 223] of her home and to prevent bodily harm to her person. The trial court apparently denied the defendant the right of cross-examination of the state's witnesses as to prior difficulties on the authority of Campbell v. Territory, 14 Arix. 109, 125 P. 717, where this court laid down the doctrine that where the law of self-defense is not in the case, evidence of the hostile feelings or acts of the deceased, or previous quarrels, is irrelevant and inadmissible on the part of the defendant. However, the Campbell case states that where there is a claim supported by some evidence of selfdefense, and the proof justivies the giving of a charge on the law of self-defense, the defendant may, for the purpose of showing deceased to have been the aggressor and the killing to have been necessary in self-defense, show hostile feelings on the part of the deceased toward her, previous difficulties, quarrels and the like.
We stated in Burgen v. State, 32 Ariz. 111, 256 P. 111, the question of admissibility of threats is one for the trial court's decision. If, however, there is the slightest evidence tending to prove a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing her life or sustaining great bodily harm, the threats should not be excluded.
The principle of law is well stated in State v. Velsir, 61 Wyo. 476, 159 P.2d 371, at page 374, 161 A.L.R. 220.
'It is well established that in order to render admissible evidence of the character or reputation for turbulance or violence of the victim of the homicide, a proper foundation must be laid by some evidence tending to show that the defendant in committing the homicidal act acted in self-defense. * * * The necessary preliminary showing or appearance of a case of self-defense may be adduced either in the evidence given in behalf of the state in its main case or by the defendant in his defense; the only indispensable prerequisite is that it precede the offered evidence of the decedent's character.' (Citing cases.)
It is also generally recognized that no hard and fast rule of exclusion of evidence may be laid down. A reasonable discretion should be allowed the trial court in determining the relevancy and admissibility of evidence. Where, however, a prima facie showing of self-defense has been made then the evidence of previous difficulties and acts of violent and dangerous character of the deceased should be admitted. It is a well-settled doctrine which has been codified by our legislature that under certain conditions and circumstances one may defent himself against death or great bodily harm. A.R.S. § 13-462. And if a homicide results then the accused may support that defense by evidence of all circumstances of the homicide; and upon a [83 Ariz. 224] prima facie showing of self-defense, whether the foundation was laid in the evidence of the state or in that of the defendant, previous difficulties, threats of the deceased, acts of aggression, hostile demonstrations or overt attack sufficient to arouse a resonable belief in the accused of apparent imminent danger to her life, or the sustaining of great bodily harm to her person, are admissible in evidence; under such conditions the character or reputation of the deceased, if known to the ...