Rehearing Denied April 24, 1962.
[91 Ariz. 103] John H. Grace, and William R. Preston, Flagstaff, for appellant.
Robert W. Pickrell, Atty. Gen., Kenneth G. Flickinger, Jr., Asst. Atty. Gen., and Laurance T. Wren, County Atty., for appellee.
Patrick Mahon McGee, hereinafter called 'Defendant', was convicted of the first degree murder of Ary J. Best, an arthritic cripple. From the conviction and sentence of death, he appeals. The facts will be stated in the light most favorable to sustaining the conviction pursuant to our usual rule. State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960).
The defendant met Millie Neil Fain, hereinafter called 'Mrs. Fain', in Stockton, California, in November, 1958, at which time they began living together. Some time after April, 1959, they left Stockton for a tour through the western states. During their travels they did a great deal of drinking and stayed on the side of the road at nights.
Their car developed transmission trouble in New Mexico and upon arriving in Winslow, Arizona, they attempted to raise money by selling some of their personal belongings. The following morning they started west toward Flagstaff. Their car continued to give them trouble and had to be pushed two or three different times. In each instance Mrs. Fain flagged down a tourist. The last party flagged down by her was the victim, Ary J. Best.
Mrs. Fain (an admitted prostitute) at the insistence of the defendant, propositioned the victim as she had other men on previous occasions during their travels. The proposition was completed in a wooded area alongside the highway although intercourse did not take place. Nevertheless, the victim gave her three dollars. She returned to [91 Ariz. 104] the defendant, who had remained by the two vehicles near the roadway, and handed him the three dollars. He then told her to return to the victim, saying that he would be down in a minute. A moment or two later the defendant followed her to the spot where whe and the victim were sitting on a blanket. The defendant rushed by her and said, 'What are you doing with my wife'? He then stabbed the reclining victim four times in the chest and back with a hunting knife. After the initial stab wounds had been inflicted, he placed the knife in the hands of Mrs. Fain and ordered her to stab the victim in the neck, for the purpose of making her a party to the crime. This she did by inflicting a knife wound on each side of the victim's neck. After the infliction of the neck wounds the victim was still alive. The defendant then stabbed him in the throat to 'put him out of his misery'.
After taking the victim's billfold containing several one hundred dollar bills, the defendant and Mrs. Fain took the victim's car and luggage and drove toward Flagstaff. They left the victim's car in Williams, Arizona, and caught a train to Los Angeles,
California, where they were arrested on August 1, 1959. At that time the defendant admitted stabbing the deceased but claimed self-defense, contending the deceased had attempted to use a pocket knife and also justification, contending the deceased was trying to rape Mrs. Fain. He also admitted taking the victim's wallet immediately after the stabbing.
To secure a reversal of the judgment, defendant has made seven assignments of error which will be considered in the order presented.
The first assignment is that the trial court erred in denying defendant's motion to have the Honorable Jack L. Ogg reassign the case to the Honorable H. L. Russell, in whose court the action was commenced. Judge Russell had made rulings for the appointment of counsel and for separate preliminary hearings of the defendant and Mrs. Fain. He also had ruled on a motion for severance, a motion regarding trial setting and had heard arguments on the petition of defendant for a writ of habeas corpus. On a motion for change of venue, Judge Russell announced his own disqualification to rule on the motion and to serve in any and all further proceedings. He later gave as his reason for disqualification 'bias and prejudice'.
Defendant contends that since Judge Russell had made rulings on litigated matters in the case, he could not disqualify himself in the absence of showing a proper reason therefor, and that at the time there was not before the court any reason. To support such contention he cites Arizona Conference Corp. of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426 (1951) wherein it was stated:
[91 Ariz. 105] '* * * It is the duty of a judge * * * to exercise the judicial finctions duly conferred on him by law, and he has no right to disqualify himself in the absence of a valid reason * * *.' 72 Ariz. at 77, 231 P.2d at 428.
It should be noted that the Barry case did not present the same question as presented in the instant case. The question there, as characterized by this Court, was:
'* * * May a judge disqualify himself after he has ruled on litigated matters where he is not biased and prejudiced, but solely for the reason that an untimely request * * * was filed against him? * * *' (Emphasis supplied.) 72 Ariz. at 77, 231 P.2d at 428.
In the Barry case, an affidavit of bias and prejudice was filed after rulings had been made on certain motions. The holding in that case went to the timeliness of the filing of the affidavit rather than to the fact of self-disqualification for actual bias and prejudice. Moreover, insofar as the Barry case holds that a ruling made on a motion prohibits the judge from being disqualified, it has been expressly disapproved in Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955). In that case this Court stated that in order for such a ruling to be so operative, it must be on a matter of evidence to be used in the final determination of the case on its merits. Thus, even if the prohibition should be taken to extend to self-disqalification, the proceedings in this case had not reached the point beyond which disqualification of a judge by an affidavit of bias and prejudice is prohibited.
The intent of our rules and statutes is to have cases tried by judges who are not biased or prejudiced in any particular. Zuniga v. Superior Court, 77 Ariz. 222, 269 P.2d 720 (1954). In that case if was held that a judge may on his own motion, if he acts timely, disqualify himself even though the reason given might not be sufficient to form the basis of a legal disqualification. This proposition is further advanced in the Marsin case, supra, wherein this Court characterized the holding in the Barry case, supra, as follows:
'* * * That case decided * * * that if a judge had been permitted to go this far, he could not even disqualify himself unless in fact he were disqualified. There is a distinction between being in fact disqualified and
being disqualified by reason of the filing of the affidavit. * * *' 78 Ariz. at ...