Rehearing Denied Dec. 20, 1960.
[88 Ariz. 366] Stephen W. Connors, Phoenix, and Robert S. Murlless, Globe, for appellant.
Wade Church, Atty. Gen., Newman W. White, Asst. Atty. Gen., Harold A. Beelar, Gila County Atty., Robert McGhee, Deputy Gila County Atty., Globe, for appellee.
STRUCKMEYER, Chief Justice.
Defendant Wilmer W. Evans was tried by a jury in the Superior Court of Gila County, Arizona, and convicted of the first-degree murder of his wife, Frances Evans. From that conviction and from a sentence of life imprisonment he appeals. Pursuant to our usual rule, the material facts will be stated in the light most favorable to sustaining the conviction. State v. Milton, 85 Ariz. 69, 331 P.2d 846; State v. Merryman, 79 Ariz. 73, 283 P.2d 239.
Defendant and Mrs. Evans were married at Magnolia, Mississippi, on September 28, 1957 and immediately thereafter commenced a honeymoon trip by automobile through the southwest United States. On October 5, 1957, there occurred the first of two automobile accidents of striking similarity. While defendant and his wife were driving through the Salt River Canyon between Globe and Show Low, Arizona, their automobile left the road and plunged down into the canyon below. Defendant, who was driving, jumped from [88 Ariz. 367] the vehicle just as it left the road but his wife, being unable to do so, was carried into the canyon and received serious injuries. At this time there was carried on the life of Mrs. Evans policies of automobile trip insurance totalling $100,000. Defendant was the beneficiary thereof. This insurance was taken out five days before the accident and expired a few hours after the accident.
After Mrs. Evans was released from the hospital in Globe, Arizona, she and defendant continued on their trip which took them through Colorado and Nevada. At Phoenix, on November 7, 1957, defendant took out three day trip insurance on the life of his life with two policies for $50,000 each, a total of $100,000. On the same day he rented a 1957 Ford automobile and they drove to Globe, Arizona, where they stayed in a motel that night.
On the morning of November 8, 1957, at about the hour of 7 o'clock A.M., when the manager of the motel came to work, the defendant's automobile was not in the motel parking area. However, later at about 8 o'clock A.M. defendant and his wife were observed entering the vehicle. At that time Mrs. Evans looked sick and had difficulty in walking. They went to a restaurant across the street for breakfast. There witnesses observed that Mrs. Evans did not order, drank only a cup of hot chocolate, sat staring at the wall and failed to answer questions asked of her by the waitress and others. At this time her hair was uncombed and she had on no make-up. At approximately 9
o'clock A.M. defendant and Mrs. Evans left the restaurant and drove east on Highway 70, toward Coolidge Dam, defendant at the wheel of the car.
Defendant was next seen by a passing truck driver lying along the edge of the road near Coolidge Dam. The driver testified that defendant smiled and waved. An hour later he hailed a passing car and told the occupants of that vehicle that his car had gone into the lake with his wife in it. The body of Frances Evans was to be seen floating in the water. Two of the passengers descended to the lake and removed her body. An autopsy disclosed that death was due to drowning and tests on body fluids established that there was present in her body large quantities of barbiturates in the form of phenobarbital.
The car entered the lake at a point where the guard cable was down and where the grade to the water was 73%. When the car was removed from the lake it was found that all the doors were closed and all the windows were up except the left front window on the driver's side. The Ford automobile was taken to a garage in Globe, Arizona, where it was found that a nut on the brake lines had been loosened, causing the brake fluid to leak. Expert testimony was to the effect that had this condition been present at the time [88 Ariz. 368] the car was rented in Phoenix, it would have been without braking power before arriving in Globe the previous day. There was also found under the hood of the car a stick about 11 inches long, the ends of which, when microscopically examined, were determined to have on them oily substances similar to those found on the engine of the automobile.
The State theorized that early in the morning of November 8th, while Mrs. Evans was asleep with an overdose of barbiturates, defendant took the Ford automobile to the Coolidge Dam area; that later when he returned with his wife he stopped near a point where the guard rail was down; that he loosened a nut on the brake line, placed a stick between the manifold and the carburetor in such a fashion as to cause the throttle to accelerate the motor; then from the outside of the car, with the door closed, shifted the transmission into forward gear, causing the automobile to move forward over the shoulder of the road and down into the lake below. To support this theory, it was established that when the car was rented at Phoenix, the previous day, its speedometer registered 8,958 miles; that after being removed from the lake, it read 9,128.3 miles; and that the difference of 170.3 miles was approximately the mileage from Phoenix to Globe, from Globe to Coolidge Dam, from Coolidge Dam back to Globe and from Globe back to Coolidge Dam.
Two inmates of the Gila County Jail testified that while Evans was confined in jail pending trial he admitted to them that he had killed his wife.
The defendant's testimony, briefly summarized, was to the effect that as they approached the Coolidge Dam his wife was driving; that suddenly his wife said 'Baby, no brakes'; that he managed to jump free of the vehicle just as it left the road, as he did in the previous accident in the Salt River Canyon, but that his wife was carried down with the automobile into the lake. Defendant devotes extensive argument to the proposition that the evidence is not sufficient to sustain a verdict of guilty. He attacks various aspects of the State's case, such as the evidence concerning the brakes, the stick and the medical opinion as to the effects of barbiturates.
We think that the evidence supports the verdict of the jury. While it is possible to minimize each plece of evidence on the whole it carries the conviction that the charges are sustained beyond a reasonable doubt. Irrespective, we will not substitute our judgment for that of the jury where the verdict finds substantial support in the evidence. State v. Wallace, 83 Ariz. 220, 319 P.2d 529. Although the evidence is almost entirely circumstantial, such is competent in a criminal case. Holder v. State, 31 Ariz. 357, 253 P. 629. If it excludes [88 Ariz. 369] every reasonable hypothesis of innocence,
it is sufficient to sustain a conviction. Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 125 A.L.R. 3.
Specific objection is directed to a number of instructions given by the trial court. Those instructions relating to defendant's good character, the court's definition of an accident, possiblity of deceased contributing to her own death and pertaining to the testimony of a convicted felon, were all requested by defendant. We will not consider them as grounds of error. State v. Serna, 69 Ariz. 181, 211 P.2d 455.
It is urged that the trial court erred in failing to give instructions limiting the use of certain testimony. No request was made to the court below for such limiting instructions. Failure to do so constitutes a waiver of the right thereto. State v. Polan, 80 Ariz. 129, 293 P.2d 931; Sullivan v. State, 47 Ariz. 224, 55 P.2d 312.
Defendant further complains of certain other instructions. It is an accepted rule of law that appellate courts will only consider such questions as were raised at the trial with respect to errors or omissions in the giving of instructions. 5 Wharton, Criminal Law Procedure, § 2097, Page 265 (1957). The rule stated by Wharton is the accepted rule in this jurisdiction, Rule 272, Rules of Criminal Procedure, 17 A.R.S. Rule 272 provides:
'The law of evidence and the law relating to instructions to the jury in civil actions shall apply to criminal actions except as otherwise provided.'
Rule 51 of the Rules of Civil Procedure, 16 A.R.S., provides in part:
'No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.'
Here, in each instance of claimed error as to motive, penalty, and criminal negligence, no objection whatsoever was made in the court below. Patently the ...