[87 Ariz. 278] Patrick W. O'Reilly, Phoenix, for appellant.
[87 Ariz. 279] Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Franklin K. Gibson, Asst. Atty. Gen., for appellee.
The appellant, Benjamin Hitchcock, hereinafter referred to as defendant was convicted in the Superior Court of Maricopa County of murder in the first degree and sentenced to life imprisonment. The first count of the information charged him with having killed one Ernest A. DiVito while in the commission of a robbery; the second and third counts charged him with kidnaping. The defendant was acquitted of the kidnaping charges but was found guilty of murder in the first degree. The applicable statutes upon which the murder court of the information was based are as follows:
A.R.S. § 13-451
'A. Murder is the unlawful killing of a human being with malice aforethought.
'B. Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.'
A.R.S. § 13-452
'A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or mayhem, is murder of the first degree. All other kinds of murder are of the second degree.'
From that verdict and judgment and from the court's order denying defendant's motion for a new trial, the defendant brings this appeal.
The facts are that the defendant appeared at the office of Ernest DiVito on the morning of the 16th of October and asked the secretary, Miss Audrey Wedlock, if they had received final payment on a contract which they had recently completed, claiming that deceased owed him money which he had promised to pay when final payment was made on said contract. She replied that it had not been paid. As Ernest DeVito emerged from a rear office defendant pulled a gun. He removed two checkbooks from the secretary's desk and after examining the balance shown in one, put them into his pocket. He then took a check protector in his right arm and at gun point ordered Ernest DiVito and the secretary, Miss Wedlock, to go with him.
As defendant was backing Ernest DiVito's car out of the driveway, his brother, Anthony DiVito, arrived. A struggle for [87 Ariz. 280] possession of the gun resulted in its being thrown into the street. But before defendant was completely subdued, he produced a second gun which he discharged two times. One of the projectals struck Ernest DiVito, passing through his arm and chest and lodging in his third dorsal vertebrae, resulting in his death.
Defendant makes three assignments of error, the first of which is stated as follows:
'The verdict rendered is not supported by the evidence and is contrary to law in that there was insufficient evidence to support a conviction of the crime of homicide in the perpetration or attempt to perpetrate a robbery for the reasons that:
'A. The evidence disclosed that the killing of another was committed after the perpetration or attempt to perpetrate the crime of robbery was at an end and had been abandoned by the defendant.
'B. There was insufficient evidence of the necessary element of a taking of personal property in the possession of another from his person, or immediate presence.'
The first part of this assignment of error charges that the evidence discloses that the robbery was at an end when the killing occurred and implies that therefore the felony-murder rule should not have been applied. The basis of defendant's argument in connection with this contention is found in Anthony DiVito's testimony on cross-examination. After this witness had testified that he had apparently disarmed the defendant by throwing the first gun into the street, counsel for defendant skill-fully gained an affirmative answer to the following question:
'So, you pulled him out in order to beat him up, to have a legal fight with him?'
It is defendant's contention that at this point in time he had been subdued and that the robbery or attempted robbery was at an end. Contrariwise, an examination of the transcript in this case totaling over 750 pages and bound in three volumes does not sustain the defendant's position. There was no appreciable span of time nor appreciable change in the respective position of the parties between the disarming of defendant and the shooting; nor any overt act on the part of the defendant which would indicate to those present that he had abandoned the robbery or that it was at an end. The evidence indicates that the events which transpired immediately preceding the shooting occurred in rapid sequence and as a part of the chain of events which defendant's deliberate acts had set in motion. The clear import of the evidence is that defendant had not been subdued or even apparently subdued at that point in time when he had been seemingly disarmed. [87 Ariz. 281] And the remainder of Anthony DiVito's testimony makes it equally clear that his purpose in pulling defendant out of the car in order to 'have a legal fight with him,' was to restrain him until the police arrived.
A well-reasoned opinion cited by the State, Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 599, 12 A.L.R.2d 183, thoroughly discusses this problem. In applying the felony-murder rule the court held the defendant accountable for the death of a policeman attempting to apprehend the defendant although the fatal shot may have been fired mistakenly by another policeman. In so ruling, the court cited numerous criminal and civil cases as well as many of the most noted authorities. The court there said:
'Our decision in the Moyer-Byron case [Commonwealth v. Moyer (Commonwealth v. Byron), 357 Pa. 181, 53 A.2d 736], was an application of the long established principle that he whose felonious act is the proximate cause of another's death is criminally responsible for that death and must answer to society for it exactly as he who is negligently the proximate cause of another's death is civilly responsible for that death and must answer in damages for it. Wharton on Homicide, Third Edition, p. 30, says under the heading of 'Causal Connections' that: '* * * one whose wrongful act hastens or accelerates the death of another, or contributes to its cause, is guilty of homicide, though other causes co-operate. And he is guilty if his act was the cause of the cause of death, if the relation was causal, and the injured condition was not merely the occasion upon
which another cause intervened not produced by the first injury, or related to it in any other than a causal way, then the person inflicting the injury is guilty of homicide.' Professor Joseph H. Beale of Harvard Law School in an article entitled 'The Proximate Consequences of an Act,' 33 Harvard LR 633, 646, said: 'Though there is an active force intervening after defendant's act, the result will nevertheless be proximate if the defendant's act actively caused the intervening force. In such a case the defendant's force is really continuing in active operation, by means of the force it stimulated into ...