[85 Ariz. 214] Charles C. Stidham, County Atty., Vernon B. Croaff, Deputy County Atty., Phoenix, for the State.
Stephen W. Connors, Phoenix, for defendant.
Defendant, George B. Wilson, Jr., was informed against for murder in the first degree. He timely moved, under A.R.S. § 13-145, to quash the information upon the ground of former jeopardy. The trial court was of the opinion that the basic question raised was sufficiently doubtful and important to require the decision of this Court before placing defendant on trial for his life. With the consent of the defendant the matter was therefore certified to this court under the provisions of Rule 346, Rules of Criminal Procedure, A.R.S. Vol. 17.
Before stating the question for decision we deem it advisable to briefly recite the pertinent facts so that the full import thereof will be better understood. On July 5, 1957, the defendant shot his wife, Maxine Wilson, between the eyes with a .22 caliber rifle. She was thereupon hospitalized and on October 15, 1957 was discharged. She declined to permit the removal of the slug which was lodged at the base of her sinuses.
A criminal complaint charging defendant with an assault with intent to kill and murder the said Maxine Wilson was filed before a magistrate, a preliminary hearing was held thereon and defendant was held to answer to the superior court on said charge. On July 19, 1957, the county attorney
filed an information (Criminal cause No. 30749) in the superior court of Maricopa County, charging defendant with said offense. Thereafter, on October 14, 1957, an amended information was filed charging that defendant Wilson did '* * * with a certain deadly weapon, to wit: a .22 rifle, make an unlawful assault on the body and person of one Maxine Wilson.' A plea of guilty to said amended information was entered and on November 18, 1957, he was adjudged guilty by the court and as punishment was sentenced to serve not less than four nor more than six years in the Arizona State Penitentiary. The defendant immediately entered upon the service of said sentence and is now incarcerated in the penitentiary.
The certificate reites:
'9. That the said Maxine Wilson died on April 9, 1958, of an acute [85 Ariz. 215] purulent meningitis which was the proximate result of the July 5, 1957, wound and there was no act of the defendant subsequent to the shooting of July 5, 1957, which in any way contributed to her death nor was there any other independent outside act which contributed to her death.'
Death of the victim having occurred within a year (A.R.S. § 13-458), a murder complaint was filed against defendant and after a preliminary hearing the defendant, on July 2, 1958, was charged, in proper legal terminology, with murder in the first degree (Criminal cause No. 32477), the information setting forth the shooting of July 5, 1957, and stating that the victim, Maxine Wilson, '* * * lingered and died on or about the 9th day of April, 1958, as a result of said shooting.'
The certified question is as follows:
'Where a defendant committed an assault with a deadly weapon upon a victim who appeared to survive the effects thereof and the defendant was then charged with the crime of assault with a deadly weapon, pled guilty thereto, and was adjudged guilty thereof and a judgment of sentence was thereupon pronounced and placed into operation, and thereafter, and without any additional act on the part of the defendant, or any other person, the victim dies from the effect of the shot, does the judgment of guilt and the judgment of sentence of the offense of assault with a deadly weapon constitute placing the defendant in jeopardy so as to bar a prosecution for murder in relation to the victim?'
This raises an interesting question and one which is rarely involved. Article 2, section 10, Constitution of Arizona, A.R.S., prohibits a person to be '* * * twice put in jeopardy for the same offense.' The question stated more succinctly is, did defendant's plea of guilty to assault with a deadly weapon, with the resulting judgment of conviction, constitute former jeopardy so as to be a bar to this prosecution for murder? In the few cases considering the question, it has been uniformly held that an acquittal or conviction on a charge of assault does not bar a prosecution for murder where the victim dies after the first trial. See, Annotation 37 A.L.R.2d p. 1072.
The test to be applied is whether the facts charged in the latter information would, if found to be true, have justified a conviction under the earlier information. If they do, then the judgment on the earlier information is a complete bar to a prosecution under the later information, otherwise not. The rule seems to be firmly established that in order for a former conviction or ...