Rehearing Denied July 7, 1959.
[86 Ariz. 113] Robert O. Lesher and A. Alan Hanshaw, Tucson, for appellant.
Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., and Franklin K. Gibson, Asst. Atty. Gen., for appellee.
Robert Dwight Fenton was informed against on the charge of murder, first degree. The information alleged that the defendant, on or about the 23d day of February, 1958, deliberately, premeditatedly and with malice aforethought, murdered Opal Keller Coward.
Two prominent members of the Pima County bar were appointed to represent the defendant, and a motion was made under Rule 250, Rules of Criminal Procedure, 17 A.R.S., for an examination to determine whether the defendant was insane or mentally defective to the extent that he was [86 Ariz. 114] unable to understand the proceedings against him or to assist in his defense. The court granted the motion and appointed two qualified experts to examine the defendant with regard to his then mental condition. Thereafter Dr. Charles Neumann, M. D. and Dr. J. K. Bennett, M. D., qualified psychiatrists, at a hearing, reported their findings after examining the defendant; the court found that the defendant was able to understand the proceedings against him and assist in his defense, and ordered that the matter proceed to trial.
The defendant was arraigned before the trial court on April 8, 1958, and entered a plea of not guilty. The defendant filed a notice, as required by Rule 192, Rules of Criminal Procedure, of his intention to introduce evidence at the time of trial that he was insane or mentally defective at the time of the alleged commission of the offense charged.
The defendant, before trial, withdrew his plea of not guilty, and entered a plea of guilty to the charge of murder in the first degree, and such plea of guilty was accepted by the court.
It is the duty of the trial court, under the provisions of A.R.S. § 13-453, in case of a plea of guilty to murder in the first degree, to determine whether the punishment shall be life imprisonment or death; Rule 187, Rules of Criminal Procedure, provides that where the court accepts the plea and has discretion as to the punishment for the offense, it may hear witnesses to determine what punishment shall be imposed; and Rule 336, Rules of Criminal Procedure, which provides for an inquiry into mitigating or aggravating circumstances of the offense, reads as follows:
'Inquiry into mitigating or aggravating circumstances.
'When the court has discretion as to the penalty to be inflicted on the defendant,
it shall, upon suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the circumstances summarily in open court, either immediately or at a special time and upon such notice to the deverse party as the court directs, or the court may inquire into such circumstances of its own motion.'
The trial court thereafter received evidence, both oral and documentary, for the purpose of ascertaining what the punishment should be. A sentence of death was imposed and the defendant has appealed from the judgment entered.
We deem it advisable to set forth a summary of the matters presented to the trial court. There were no eyewitnesses to the murder, and the following facts are taken from statements made by the defendant to the officers, which were admitted in evidence at the pre-sentence hearing.
[86 Ariz. 115] The defendant, a young man 24 years of age, arrived in Tucson, Arizona, on January 22, 1958, and shortly thereafter met the decedent and her husband, who were the owners of a drug store. He was unable to find employment and was invited by the decedent to move into their house and perform odd jobs on the properties owned by them. He lived with the decedent and her husband until the 14th day of February, 1958, when he secured a full-time job, and was asked to vacate the guest room because out-of-town guests were shortly to visit them. The decedent gave the defendant $20 at the time he left, and informed him that if he needed more or wanted to pay back what he had borrowed, that he could do odd jobs around the house on his day off from his regular job.
On the afternoon of Sunday, February 23, 1958, the defendant went to decedent's home to work in the yard, and when she was leaving for work he asked her for the sum of $200 but she refused to give him more than $40. The defendant related that he planned to steal everything of value in the house because decedent had refused to give him money, stating that he entered the house and filled suitcases with personal property and intended to hit decedent over the head when she returned and to then steal her car. He further stated that when decedent returned home about six in the evening he hid behind a door, and as she entered struck her on the head with the barrel of a .22-caliber pistol. In the words of the defendant:
'I struck her four times and the gun went off. I became panicky after I accidently fired the shot and in my panic I fired more shots into her until she quit moving. I went through her pocketbook and took her wallet and what loose change there was. I went out to the car and started to drive away but there was no key in the ignition. I tried to open the back door but it locked behind me. I went to the bathroom window, smashed the window to gain entrance again. I ...