Rehearing Denied May 16, 1961.
[89 Ariz. 225] Joel B. Olmsted, Glendale, and Allan J. Stanton, Phoenix, for appellant.
Wade Church, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., Robert W. Pickrell, present Atty. Gen., Charles C. Stidham, former County Atty., Charles N. Ronan, present County Atty., Donald Meyers, former Deputy County Atty., and Howard P. Leibow, Deputy County Atty., Phoenix, for appellee.
BERNSTEIN, Vice Chief Justice.
The defendant, Honor Robinson, was informed against and tried for the unlawful killing of one William Henry Bischoff on or about December 21, 1958. He was convicted of first degree murder and the death penalty was imposed. He now appeals.
[89 Ariz. 226] It appears from the evidence that Vera Whipple and William Henry Bischoff, hereinafter referred to as the deceased, arrived in Phoenix from the State of Washington in December, 1958. On December 15, 1958, they met the defendant, a Negro. The deceased and defendant entered into a conversation, at that time, in which the deceased asked if he, Mrs. Whipple and her children might stay with the defendant since they had no money and were without a place to stay. The defendant invited them to live at his home at 4314 South 34th Street, Phoenix. At this time the defendant believed that they were man and wife.
After a few days, Vera Whipple disclosed to the defendant that she was not married to the deceased. The activities of these three during this time amounted to 'lining-up' places to burglarize. In carrying out this activity they would drive around the various parts of the city. On serveral occasions the defendant and Vera Whipple would drive out together without the deceased. The defendant soon became attracted to Vera Whipple. This attraction culminated in an affair at the Paducah Hotel on the night of December 20, 1958.
On the following morning the deceased called the Maricopa County Sheriff's office in an attempt to locate Vera Whipple. Before the sheriff's officer arrived the defendant and Vera Whipple returned to the house. An argument ensued when the deceased displayed anger at Vera Whipple's staying out all night with the defendant. This aroused an antagonism between the deceased and the defendant. That evening the defendant lured the deceased to Papago Park on a plan to burglarize a house in the area.
When they reached Papago Park and parked the car, the two men proceeded to walk up a dirt road in the park. As they were walking, the defendant feigned a stumble which enabled him to get behind the deceased. The defendant seized the opportunity and shot the deceased twice in the back. At the trial the defendant claimed he shot in self-defense when the deceased 'lunged' at him with an ice pick. After the shooting, the defendant dragged the body off the road and removed all identification from the deceased's person and returned home. He lived with Vera Whipple until December 31, 1958, when he was arrested.
Defendant urges that the trial court in denying his motion for a change of venue deprived him of a fair and impartial trial. It is contended that because of the publicity given the murder and the fact that the defendant was a Negro and the deceased, a white man, the community had a prejudice against the defendant. The rule in this jurisdiction is:
'Whether the application [for a change of venue] should have been granted is largely a matter of discretion[89 Ariz. 227] of the trial court which we will not disturb unless it clearly appears that such discretion was abused. * * *' Burgunder v. State, 55 Ariz. 411, 103 P.2d 256, 261; State v. Thomas, 78 Ariz. 52, 275 P.2d 408 affirmed 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863.
The record discloses that the trial court was very vigilant in selecting and determining the qualifications of the jurors and especially to whether they had read any newspaper articles concerning the facts and circumstances of the killing. There was no abuse of discretion in denying a change of venue.
The defendant in his next assignment of error alleges that the trial court erred in refusing to let the defendant answer a question on direct examination relating to his motive. When the defendant took the witness stand in his own behalf he was asked:
'Q. Honor, did you kill Bill Bischoff? A. Yes, sir.
'Q. Why did you kill him? A. To keep----
'Mr. Meyers: We object. This is a conclusion.
'The Court: It does call for a conclusion. Just ...