[83 Ariz. 250] W. Edward Morgan and Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., Raul H. Castro, County Atty. of Pima County, and H. E. Rogge, Jr., Chief Deputy County Atty. of Pima County, for appellee.
DON T. UDALL, Superior Court Judge.
The defendant-appellant, Richard Lewis Jordan, was convicted of the crime of first [83 Ariz. 251] degree murder, and was sentenced to be executed. From said judgment he has perfected this appeal.
The State contended the murder was deliberate and premediated, and was accomplished by the use of a knife held in the hands of defendant. The evidence convincingly supported these contentions.
This is defendant's second appeal from a judgment inflicting the death penalty. Our decision reversing the first conviction, because of improper remarks of the county attorney, is reported in 80 Ariz. 193, 294 P.2d 677. Included therein is a statement of facts which substantially conforms to the evidence adduced at the second trial, thus making it unnecessary to restate them.
Defendant's first nine assignments of error are based on the proposition that the state was improperly permitted to read to the jury the testimony given by Cleo Couture and Charles Couture, witnesses at the first trial. Defendant timely objected and now assigns this as error upon the grounds hereinafter stated, viz.:
First: That the state knew the witnesses' address in Colorado and the Uniform Act, section 44-2715 A.C.A.1939 (now A.R.S., section 13-1863) extended the jurisdiction of the State of Arizona over states that have this reciprocal act. This act provides for securing, in certain circumstances, the attendance of witnesses from without the state in criminal proceedings. It is urged that failure to comply with the provisions of this act renders such testimony inadmissible since no proper foundation had been laid for its admission. We are convinced the trial court correctly ruled that the Uniform Act is inapplicable
in the present situation. Defendant advances the novel theory that the act actually extends the jurisdictional limits of the state so that mere absence of the witness from the State of Arizona under section 44-1822 A.C.A.1939 (now Rule 256, Rules of Criminal Procedure, 17 A.R.S.) is not a sufficient predicate upon which to introduce their testimony given at a former trial. We cannot agree. As was said in State v. Blount, 200 Or. 35, 264 P.2d 419, at page 426, 44 A.L.R.2d 711:
'The Uniform Act does not extend the jurisdiction of the courts of this state beyond its territorial limits, for this is not within the power of the legislature. The operation of the Uniform Act depends upon the principles of comity, and it has no efficacy except through the adoption of the same act by another state. California could repeal its act tomorrow and no constitutional right of any defendant in a criminal action would be touched.'
The witnesses were absent from the state, residing in Colorado, hence the state having shown this complied with the statute. See, McCreight v. State, 45 Ariz. 269, 42 P.2d 1102.
[83 Ariz. 252] Second: Reliance is had upon the principle that in a criminal proceeding every defendant has the right to be confronted by the witnesses against him, and the claimed lack of confrontation here rendered the testimony of the Coutures inadmissible. We hold this right of confrontation was met at the first trial, hence the witnesses being without the jurisdiction of the court the testimony was properly admitted. McCreight v. State, supra.
Finally it is contended that inasmuch as the names of the witnesses were endorsed on the information, the defendant in effect was misled as he had a right to rely thereon, i. e., that such witnesses would be present in person to testify. We do not understand it to be the law that merely because the county attorney endorses the names of witnesses on an information that he must use them or have them present at the trial for cross-examination by defense counsel. It should be noted when, prior to trial, defense counsel learned the Coutures were without the state they made no effort to take their deposition nor did they ask for a continuance. Had the Uniform Act applied it has been held, under comparable statutes, that the accused could not require the state, at state expense, to secure the presence of these witnesses. State ex rel. Butler v. Swenson, 243 Minn. 24, 66 N.W.2d 1; State v. Fouquette, 67 Nev. 505, 221 P.2d 404; State v. Blount, supra.
The Uniform Act being inapplicable to the present situation and all other requirements met for the introduction of the testimony, these assignments of error are found to be without merit.
In the first trial defendant pleaded not guilty to the charge of first degree murder, and filed a notice of intention to make a defense of insanity at the time of the commission of the offense charged; and also, a defense of alibi. However, at the commencement of the second trial defendant stipulated and agreed that he claimed no rights or prerogatives under the notice of insanity in the original case, which had the legal effect of withdrawing his plea of not guilty by reason of insanity.
In the tenth to fifteenth assignments of error, inclusive, defendant contends that the trial judge committed reversible error in sustaining objections to defendant's voir dire examination of proxpective jurors, as to whether jurors would be prejudiced for or against the defendant if the evidence showed he had once been in a psychiatric institution; and further that the court erred in not allowing defendant to introduce evidence at the trial on the question of his mental condition.
The law is well settled that a defendant on trial for his life or liberty should be allowed the privilege of making reasonable and prudent inquiries of jurors on voir dire so that he may intelligently [83 Ariz. 253] exercise his permptory challenges. The case of Anderson v. State, 90 Okl.Cr. 1,
209 P.2d 721, at page 726, succintly states this rule as follows:
'A liberal latitude should be given the defendant in the examination of jurors on voir dire to the end that it may be ascertained whether there are grounds for challenge for either actual or implied bias; also to enable the ...