[86 Ariz. 162] Flynn & Allen, Phoenix, for appellant.
Robert Morrison, Atty. Gen., James H. Green, Jr., Chief Asst. Atty. Gen., Lloyd C. Helm, County Atty., John G. Pidgeon, Deputy County Atty., Bisbee, for appellee.
J. SMITH GIBBONS, Superior Court Judge.
Albert D. Thomas, appellant, and his wife, Ellora Thomas, were jointly charged with murder in the first degree of one Frank Crane. The wife was acquitted and appellant, hereinafter called defendant, was convicted of manslaughter and sentence imposed. We consider that the only serious question to be determined is whether or not the learned trial court erred in giving what is herein called the Voeckell instruction, under the facts and circumstances shown by the record in this case.
It is undisputed that Frank Crane was shot and killed in a gun battle between decedent and his son, John Crane, on the one hand, and the defendant and his wife on the other, during which many shots were fired by both sides. There is a direct conflict on virtually every material fact in issue. The state asserts the first shots came from the Thomas truck and the defendant insists the Cranes started the shooting and he killed Frank Crane in self-defense. There is evidence supporting each of these claims from which reasonable persons might honestly disagree as to who was the aggressor.
After six days of trial the case was submitted to the jury at 3:20 p. m. on May 22, 1956. At 12:00 o'clock midnight the judge [86 Ariz. 163] called the jury into open court and the following proceedings were had:
'The Court: Let the record show the presence of the defendants and the attorneys and the jury, of course. Members of the jury, I asked the bailiff to bring you down. Who is the foreman, incidentally?
'The Foreman: I am, your honor.
'The Court: 'Do you think you are going to be able to arrive at a verdict in this matter? A. We were wondering if we could--it was permissible for the jury and you to meet.
'Q. No. A. Well, we didn't know. We were doubtful.
'Q. No. That would be very improper to do that. A. And if not, speaking for the jury, we feel that there is not enough evidence----
'Q. I don't want you to tell me. What I want to know is whether you think it is possible to arrive at a verdict. A. I don't.
'Q. Let me ask the rest of the jurors, is it the opinion of all of you that you cannot arrive at a verdict? (Several Jurors) A. Yes.
'Q. That seems to be the general concensus of opinion? Do you believe if I sent you back for further deliberation that you might possibly arrive at a verdict? A. Providing we had one law of the court read to us again.
'Q. Well, do you think it would help if the instructions were ...