Rehearing Denied March 22, 1960.
[87 Ariz. 183] W. Edward Morgan, Tucson, for appellant.
Wade Church, Atty. Gen., Franklin Gibson, Asst. Atty. Gen., Harry Ackerman, County Atty. of Pima County, and Pete [87 Ariz. 184] M. Rubi and Jack I. Podret, Deputy County Attys. of Pima County, Tucson, for appellee.
James D. Douglas (defendant-appellant), a Negro, was charged before a magistrate with the crime of murder (second degree), a felony. After a preliminary hearing the committing magistrate held him to answer for the crime of manslaughter. Thereafter
the county attorney of Pima County filed an information in the superior court charging defendant with manslaughter, viz.: the unlawful killing of Alois Robert Katafrias on August 16, 1958. To this information the defendant--who at all times was represented by counsel--first entered a plea of not guilty. Later in open court he withdrew this plea and entered a plea of guilty to the charge of manslaughter.
Prior to sentencing, at defendant's request, a full hearing was had on his request for mitigation of punishment. Twenty-six witnesses, called by the defendant, were sworn and testified at such hearing, and a written report from Dr. Neumann, a psychiatrist, was submitted. The testimony of all of these witnesses was highly favorable to the defendant. The adult probation officer submitted his report, in which he stated that he was unable--under the circumstances--to recommend probation solely because, as the report stated, 'he took the life of another human being.' Through this hearing the trial court became thoroughly acquainted with the defendant's background, his standing in the community, and the esteem in which others held him. Following the proceedings, and with full awareness of all the circumstances, the court imposed sentence. In so doing, the court said, in effect, that to a considerable extent it had deferred to the favorable opinions of the character witnesses and the experts who had appeared on defendant's behalf. The court stated that, in the absence of such a strong showing, the sentence imposed would surely have been greater. However, it was the expressed opinion of the trial court that the matters presented in mitigation of punishment were not sufficient to outweigh the gravity of the offense nor such as to justify probation. The court then proceeded to enter a judgment of conviction and imposed a sentence upon defendant to serve not less than three nor more than five years in the State penitentiary. (The maximum statutory sentence for manslaughter is ten years, A.R.S. § 13-457.) A certificate of probable cause was then granted and defendant released upon bail. This appeal followed.
The notice of appeal is from the sentence imposed
'upon the grounds and for the reasons that said sentence is illegal, being violative of the State and Federal Constitutional provisions for due process[87 Ariz. 185] and equal protection of the laws; that said sentence is cruel and unjust; and for the further reason that the Court abused its discretion in assessing the punishment in the aboveentitled case.'
The single assignment of error reads:
'The court abused its discretion in imposing a prison sentence in the facts and circumstances of this case.'
The supporting propositions of law advanced by defense counsel--without any citation of authority--are:
'1) Where a statute gives a Court the discretion to impose a jail sentence or to suspend the operation thereof, it is unlawful to impose a jail sentence where there is no basis other than the bare commitment of the criminal act; and where there is substantial evidence presented to the Court, it is unlawful sentence to sentence a defendant to jail for a term of three to five years for manslaughter where the substantial evidence shows the defendant:
'(a) Has, for 48 years of his life to the time of the incident involved, not committed any other crime;
'(b) Has been psychiatrically examined and found to be an emotionally stable and mentally well person;
'(c) Has shown his stability, trustworthiness and honesty by holding a responsible position with the same fundamental employer for ...